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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: 21762/2024
N[...] R[...] First Applicant
N[...] R[...] Second Applicant
M[...] R[...] (minor ) Third Applicant
And
DIRECTOR GENERAL: HO ME AFFAIRS First Respondent
MINISTER OF HOME AFFAIRS Second Respondent
Coram: Pangarker J
Hearing date: 23 April 2025
Judgment date: 5 May 2025
JUDGMENT
___________________________________________________________________
PANGARKER J
Introduction
[1] This judgment addresses the duty of an applicant to first exhaust internal
remedies before approaching a Court seeking the review of an administrative action
in terms of the Prom otion of Administrative Justice Act 3 of 2000 (PAJA) . The first
and second applicants (the applicants) are Ukrainian nationals and are married to
each other. The third applicant is the ir minor child, and it is common cause that the
applicants entered South Africa legally on three -month tourist visas in September
2021. While in South Africa, Russia invaded the Ukraine, leading to a war between
these two countries , which it is common cause, is still ongoing . The applicants
consequently applied for asylum in South Africa , seeking refugee status , but their
applications were rejected .
Common cause facts
[2] The applicants are currently holders of asylum seeker temporary visas issued
in September 2024 . Preceding the issuing of these temporary visas, each of the
applicants were interviewed individually by Refugee Status Determination Officers
(RSDOs) at the Refugee Reception Office in Epping in lieu of their applications for
asylum . The outcome of the applications for refugee status/asylum was th at they
were rejected as unfounded in ter ms of section 24(3)(c) of the Refugees Act 130 of
1998 (the Act).
[3] The RSDOs decisions are attached to the first applicant’s founding affidavit as
annexure NR4. Shortly after the refusal of the asylum applications and in October
2024 , the applicants appealed the decisions of the RSDOs and it is common cause
that these appeals are still pending before the Appeals Board Authority ( AB) and
have thus not been finalized yet .
Condonation and the review applications
[4] On 9 October 2024, the applicants duly represented, delivered their Notice of
Motion , seeking the following relief:
1. To seek exemption from the First and Second Applicants’ having to
exhaust internal remedies in terms of section 7(2)(c) of Promotion
of Administrati ve Justice Act 3 of 2000 (“PA JA”) ;
2. To review and set aside the decision taken by the Refugee Status
Determination Officers (“the RSDO decisions”), in relation to both
First and Second Applicants’ applications for asylum in terms of
section 22 of the Refugees Act 108 of 1998, as amended (“the
RA”);
3. Upon setting aside the RSDO decisions, to seek that the decisions
are remitted for reconsideration, de novo, to a new RSDO, or
directly to the First Respondent, or alternatively, the Secon d
Respondent, with direction, in terms of 8(1)(c)(i) of PAJA, with a
view to finalising First and Second Applicants’ applications for
asylum in terms of the RA;
4. Directing the Respondents to pay the costs of this application in
the event of its oppositio n.
5. Further and/or alternative relief. ”
[5] The matter came before Parker AJ in Third Division on 12 November 2024
who granted an order postponing the application for hearing to the semi -urgent roll.
In addition to the postponement, Parker AJ also ord ered that the Rule 53 record was
to be filed by the respondents on or before 26 November 2024, and inter alia, the
respondents were required to file their answering affidavits by 7 February 2025.
[6] The respondents failed to comply with the time -period provided for in Rule 53
and additionally, failed to file their answering affidavit in accordance with the timeline
ordered by Parker AJ. They consequently applied for condonation formally and
motivated their reasons for the delay and non -compliance. Initially , it seemed that the
applicants intended to oppose the condonation application but a day before the
postponed hearing, the applicants attorney advised in a supplementary note , that
condonation was not opposed.
[7] Suffice to mention that on t he hearing date, the respondents’ counsel made
submission s regarding condonation and after considering the matter, the reasons for
delay and non -compliance , I was satisfied that the explanation was sufficiently full
and reasonable to enable me to determine how the delay and non -compliance came
about, that good cause was shown for the granting of condonation and that no
prejudice resulted in the delay , particularly as the applicants had delivered a reply to
the answering affidavit. In the result, condonation was granted in respect of the
delayed delivery of the Rule 53 re cord and answering affidavit.
The RSDOs reasons for rejecting the asylum applications
[8] Aside from recording the applicants’ different personal circumstances, the
RSDOs decisions (or refusal letters, as described by the applicants)1, are identical in
every way . To understand this in context, it is necessary to summarise the content of
these documents. The first applicant was interviewed by RSDO Mbulelo Nxeleba
and the second applicant was interviewed by Shadrick Diamond on 29 July 2024.
[9] The officers’ decisions indicate that the first applicant was born in Kyiv and the
second applicant was born in Donetsk. Both resided in Kyiv at the time they left the
Ukraine in 2021 to visit South Africa as tourists. The RSDOs refer to section s 2 and
3 of the Act2 which state the following:
2. General prohibition of refusal of entry, expulsion, extradition or
return to other country in certain circumstances
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
1 NR4
2 Reference to amendments in the legislation is excluded
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 h er
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 public order in any part or the whole of that
country.
3. Refugee status
Subject to Chapter 3, a person qualifies for refugee status for the purposes of
this Act if that person —
(a) owing to a well -founded fear of being persecute d by reason of his or
her race, gender, tribe, religion, nationality, political opinion or
membership of a particular social group, is outside the country of his or
her nationality and is unable or unwilling to avail himself or herself of
the protection of that country, or, not having a nationality and being
outside the country of his or her former habitual residence is unable or,
owing to such fear, unwilling to return to it; or
(b) owing to external aggression, occupation, foreign domination or other
even ts seriously disturbing public order in either a part or the whole of
his or her country of origin or nationality, is compelled to leave his or
her place of habitual residence in order to seek refuge in another place
outside his or her country of origin or nationality3; or
3 My emphasis
(c) is a spouse or dependant of a person contemplated in paragraph (a) or
(b).
[10] Under the heading Burden of Proof in NR44, the RSDOs record that the
burden of proof is on the person submitting a claim5 and that the standard of proof is
a reasonable possibility of persecution which must be considered in light of all
circumstances , for example, past persecution and forward -looking appraisal of risk
which means a reasonable possibility of persecution. Neither of the applicants
belonged to any organisations in the Ukraine, nor were they ever arrested. No entry
was made under the heading Credibi lity.
[11] The RSDOs recognize that the applicants base their applica tions on section
3(b) of the Act, and they indicate that the question for determination is whether the
applicants will be safe if they return to the Ukraine. They also recognize that the
applicants ’ express fears that should they return to the Ukraine, they may be harmed
or killed because of the war with Russia.
[12] The RSDOs then proceed to quote extracts detailing the status of the
aggression between Russia and Ukraine by referencing certain media outlets,
broadcasters, press reports and more, such as The Wall Street Journal, NBC News,
CNBC News, The Institute for the Study of War, The New York Times, Geoff
Bennett , Amna Nawaz and Nick Schifrin6. Obje ctively viewed, t he tone of these
reports and undated media extracts indicates and/or implies that the Ukrainian forces
were gaining the upper hand in the war against Russia. For example, Nick Schifrin ’s
report states that:
4 NR4
5 The RSDOs refer to the United Nations High Commission er for Refugees (UNHCR) Handbook on
procedures and criteria for determining refugee status, p47, par 196. I make no finding on the
correctness or otherwise of the reference to the UNHCR Handbook
6 My independent research indicates that Amna Nawaz and Geoff Bennett are broadcasters and co -
anchors on the American PBS NewsHour , while Nick Schifrin is an American journalist and PBS
NewsHour’s foreign affairs and defense correspondent – see https:// www. pbs.org
“In year three of Russia’s full-scale invasion of Ukraine, Kyiv has, over the last
week, flipped the script on Moscow with an audacious incursion into southern
Russia, catching Moscow by surprise and sowing chaos”7.
[13] The further reports , as referenced by the RSDOs, i ndicate that Russia
extracted troops from the Ukraine to deal with a Ukrainian incursion . Following on
the lengthy re ference to these press reports, the RSDO s then reach the following
conclusion in the asylum applications :
“Country origin suggest (sic) that Russian forces are beginning withdrawing
(sic) some troops from Ukraine.
In light of the above the (sic) she won’t face harm in terms of section 3(b) of
the Act. ”8
[14] The remainder of the RSDOs decisions refer to the appeal process in terms of
section 26(1) of the Act. As indicated above, except for a reference to the applicants’
personal circumstances, the RSDOs decisions, issued on different dates, are
identical , even in respect of the grammatical and typographical errors contained
therein.
The applicants’ case for review
[15] The applicants seek a review and s etting aside of the decisions taken by the
RSDOs in relation to their applications for asylum brought in terms of section 22 of
the Act. Furthermore , they seek to be exempted from having to exhaust internal
remedies first in terms of section 7 (2)(c) of PAJA .
[16] The applicants also request that upon setting aside these decisions, the Court
is to remit for reconsideration , the decisions de novo to a new RSDO or directly to
the first respondent, alternatively , the second respondent with directions in terms of
section 8 of PAJA with a v iew to finalising the asylum application s. It is accepted that
7 NR4
8 NR4
in terms of section 8(2) of the Act, the determination of refugee status falls under the
authority of the RSDO , who is appointed by the first respondent .
[17] The application is based on the RSDOs refusal letters or decisions, as
referred to above. The applicants complain that the reasoning behind these
decisions is non-sensical, lack s objective intelligibility and is unfathomable. They
clarify that they do not understand the d ecision s and indicate that they were
obligated to appeal, failing which they would have had no status in the country and
been considered as illegal foreigners . The applicants state that a failure to appeal
within the ten days allowed following receipt of t he RSDO decisions would have
resulted in their possible detention and deportation , and thus, the appeal has
provide d them with temporary status in this country.
[18] The applicants take issue that the decisions of the RSDOs are identical in that
the one officer copied the decision of the other , resulting in conduct which is highly
irregular in the circumstances. The further issue taken is that the se officials rely on
report s from random media outlets and broadcasters rather than the U nited Nations
High Commission er for Refugees ’ (UNHCR) country conditions and hence conclude
(with reference to these media reports) that the tide ha s turned in the Russia -Ukraine
war and that Rus sia was on the back foot , a conclusion which the applicants
vehemently deny.
[19] Their appeals against the rejection of the asylum applications are attached to
the founding affidavit9 and it is evident that the applicants were assisted by the same
legal representatives who currently represent them in this matter . There is no need
to detail the content of the appeal except to refer to a few pertinent facts such as that
the applicants resided in Kyiv prior to visiting South Africa , and that they emphasised
the constant danger and threat to life in the Ukraine while the war is raging .
[20] Thus, they say, their return to the Ukraine (specifically Kyiv) was not possible
as at the time airports were closed and the only entry into the country was through
outlying countries such as Poland via train . More specifically, the applicants contend
9 NR5
that Kyiv was not exempt from attacks and loss of life with the first at tacks occurring
in February 2022 . In support of their appeals, they indicate that the y have started a
family and purchased a residential property in Cape Town .
[21] The applicants express their amazement and shock at the conclusion which
the RSDOs reach in their asylum applications, namely that the Ukraine ha s/had
gained the advantage in the war and thus the applicants would not be harmed if they
return ed to the ir country of origin . The applicants contend that notwithstanding the
appeal, they reserved their rights to review the officers’ decisions , hence
approaching this Court with t he current review application in terms of section 6 of
PAJA .
The respon dents’ defences and applicants’ reply
[22] The respondents raise a point in limine of non -joinder of and failure to cite the
Appeals Board (AB) in the review. Secondly, and perhaps more significantly, the
respondents attack the review on the basis that the applicants are obliged or have a
duty to exhaust internal remedies in terms of section 7(2)(a) of PAJA . They take
further issue that in respe ct of their exemption application in terms of section 7 (2)(c),
the ap plicants fail to show exceptional circu mstances and that it is in the interests of
justice that they be exempted from first exhausting internal remedies before
approaching this Co urt with a review.
[23] The respondents do not address the merits of the review as they hold the
view and indeed submitted , that the technical points taken, if ruled in their favour,
would be dispositive of the application . In my view , the main determination in this
matter relates to the duty and obligation in terms of section 7(2)(a) of PAJA to
exhaust internal remedies and the exemption application . I agree with the
respondents’ counsel’s submission that the se issues are dispositive of the review
application.
[24] The respondents ’ case is that the applicants failed to comply with section
7(2)(a) of PAJA , and with reference to section 7(2)(c) , that no exceptional
circumstances are shown which warrant the granting of an exempt ion from the
obligation to exhaust the internal remedies nor do they show that the interests of
justice favour the granting of such exemption.
[25] `Insofar as the issue related to non -joinder of the Appeal Board is concerned,
the applicants view is that the Appeals BoardRAA has no place in the review
because the RSDO decision -making was not objectively intelligible. They also hold
the view that the Appeal Board “would not even bother with our appeals”10.
Furthermore, their concern relating to unintelligible reasons in the RSDOs decisions ,
and the fear that the appeals would not be considered, led the applicants to reserve
their rights to proceed with a review notwithstanding an appeal.
[26] Insofar as the obligation to exhaust internal remedies is concerned, the
applicants cont end that this obligation is not absolute and that an exemption could
be sought in terms of section 7 (2)(c) of PAJA. It is furthermore alleged that the
interest s of just ice is dependent on the facts of each case, and that if the first
respondent has no knowledge of the facts and the RSDOs refusals and appeal
documents , then the respondents could never dispute exceptional circumstances
and the interests of justice requirements.
[27] The replying affidavit at length deals with authorities which I addressed below
but suffice to point out that the applicants remain of the view that the point in limine
cannot be isolated from the merits of the RSDOs decision -making and to ignore this
would leave them bereft of administrative justice .
Discussion
[28] Section 7(2)(a) – (c) of PAJA states as follows:
7 Procedure for judicial review
(1)(a) …
(b) …
10 Replying affidavit, p104
(2)(a) Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal remedy provided
for in any other law has first been exhausted .
(b) Subjec t to paragraph (c), a court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a) has been exhausted,
direct that the person concerned must first exhaust such remedy before
instituting proceedings in a court or tribunal for judicial review in terms of this
Act.
(c) A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the obligation
to exhaust any internal remedy if the court or tribunal deems i t in the interest
of justice11.
[29] Having regard to PAJA, t here is no doubt that the decisions forming the
subject of this review constitute administrative actions as defined in section 1 of that
Act and are thus capable of being reviewed and set aside. There is also no argument
that both RSDOs rendered decisions as set out in annexure NR4 to the founding
affidavit. These decisions also contain conclusions that in terms of section 3(b) of the
Act, the applicants would not face harm in their country of origin, Ukraine.
[30] In my view, the opposition that the applicants did not exhaust their internal
remedies, is the point requiring determination first. The parties agree with the
interpretation and understanding of section 7(2) of PAJA. On my reading of section
7(2)(a), I mus t agree that given the peremptory language of the sub -section in that it
uses the word “shall” , there is no doubt that as a starting point , the Court cannot
review an administrative action under PAJA until an applicant for review has first
exhausted the in ternal remedies provided for in any other law.
[31] It is also not disputed that an internal remedy, given the facts of this matter, is
the appeal process provided for in section 26 of the Act. This appeal process has
11 My emphasis
been utilised and has not yet, at th e time of the issuing and subsequent hearing of
the application, been finalised as it is pending before the Appeal Board . Insofar as a
further remedy is or was available to the applica nts, such is addressed later in the
judgment.
[32] To put into perspective how stringent the requirement of section 7(2)(a) of
PAJA is, I refer to Nichol and Another v Registrar of Pension Funds and
Another12, where Van Heerden JA, with reference to The Promotion of
Administrative Justice Act Benchbook13, explains that section 7(2)(a) imposes a strict
duty to exhaust internal remedies , which has changed the common law. Under the
common law, it did not follow automatically that the existence of an interna l remedy
prevented an application for judicial review until the remedy was exhausted. The
meaning attributed by the Supreme Court of Appeal (SCA) in Nichol to section 7(2)
was endorsed by the Constitutional Court in Koyabe and Others v Minister of
Home Affairs and Others ( Lawyers for Human Rights as Amicus Curiae)14.
[33] Nichol emphasises that an exemption must be a pplied for in terms of section
7(2)(c) and upon such application being granted, the applicant is then not required to
exhaust all internal remedies before proceeding with a review application.15 The
onus is on the applicant seeking exemption to satisfy the Court tha t there are
exceptional circumstances, and that the interests of justice favour the granting of an
exemption . The hurdle for the applicants is thus two -fold.
[34] Turning to whether the applicants show exceptional circumstances for an
exemption from the duty to exhaust internal remedies , what may be construed as
exceptional circumstances, would change from case to case . Once more, I refer to
the S CA’s judgment in Nichol when considering what is meant by exceptional
circumstances as referred to in section 7(2)(c)16:
122008(1) SA 383 (SCA) par [15]
13 Iain Currie and Jonathan Klaasen, at 182
14 2010 (4) SA 327 (CC) par [34]
15 Nichol supra, par [15]
16 Nichol supra, see para [17] – [20]
[34.1] an exceptional circumstance is something out of the ordinary which
would render it inappropriate for the applicant to first exhaust the available
internal remedy;
[34.2] the circumstance would be of the nature requiring the Court’s
immediate intervention o n review rather than first exhausting an internal
available remedy;
[34.3] the exceptional circumstance which is referred to “under the auspices
of a section 7(2)(c) exemption application should exist before or at the time of
the institution of the review application”17; and
[34.4] where the available internal remedy would be such to not provide the
applicant s with “effective redress”18 for their complaint.
[35] Having regard to the above pointers, one must therefore ask what
exceptional circumstances have the applicants placed before the Court in their
section 7(2(c) application for exemption them from the obligation to first exhaust the
available internal remedies before approaching the Court for review of the RSDO
decisions ? The applica nts state that the lack of intelligible reasons by the RSDOs19
resulted in the m appealing the decisions. In addition, the y indicate that the
irregularity20 of at least one of the officers’ conduct , the unfathomable conclusions
drawn that Ukraine gained the upper hand in the war and the reservation of their
review rights, together with the RSDOs non-decisions , are exceptional
circumstances .
[36] Turning to the reservation of the right to review, my understanding of the
applicants’ case is that notwithstanding the pending appeals and the provisions of
section 7(2)(a) , the fact that they indicated that they reserved their rights to approach
the Court in terms of section 6 of PAJA , bolsters their view that in the circumstances,
they could seek a review notwithstanding a pending appeal . On the aspect of the
17 Nichol supra , para [16] -[22]
18 Nichol, par [18]
19 Resulting in the refusal of the asylum applications
20 And possible alleged forgery by one of the RSDOs of the other’s written decision
appeal, I agree with the applicants’ submission that once their asylum seeker
applications were re jected , they had to appeal within 10 days of the RSDOs .
[37] However, the applicants provide no authority for their view that they were
entitled , in the face of the peremptory provisions of section 7(2)(a) read with 7(2)(c)
of PAJA, to reserve their rights to approach the Court on review , shortly af ter they
lodged an appeal against the decisions . To the extent that there may be reliance on
Gavric v Refugee Status Determination Officer, Cape Town and Others21 to
support this view and approach, I address the issue later in the judgment.
[38] In terms of section 7(2)(a), the applicants would have had to await the
outcome of their appeal first before approaching the Court on review. PAJA does not
allow a parall el process, where an appeal and review exist simultaneously and to
emphasise the strictness of the provisions of section 7(2)(a) , the majority
Constitutional Court judgment in Dengetenge v Southern Sphere22, makes this
abundantly clear in the following man ner when it stated that:
“The promulgation of PAJA makes it compulsory for the applicant to first
exhaust the internal remedies before approaching a Court for review, unless
an exemption was granted.”
[39] The reservation of rights averment , in my view, ignores the peremptory
provisions of section 7(2)(a) of PAJA. Furthermore, the basis for the so -called direct
review , notwithstanding a pending appeal to the AB, is because of a perceived
inability to appeal or a compromised appeal because of the alleged unintelligible
decision -making of the two RSDOs. This view is driven home in the applicants ’
attorney’s written submission s which rationalises the reservation of rights argument
in the following terms:
“Therefo re, it would render their ability to appeal completely compromised and
thus the antithesis of just administrative action were they to be compelled to
21 [2018] ZACC 38
22 2014(5) SA 138 (CC) par [115]
appeal within an internal appeals mechanism regardless of the standard of
decision -making by the RSDOs ”23.
[40] In the applicants’ motivation as to why they are entitled to approach the Court
while they have a pending appeal, the further argument is that the RSDOs written
reasons for their decisions were inadequate reasons and amounted to “non-
decisions in terms of section 5 of PAJA”24. This view requires a closer consideration
of section 5 of PAJA, which addresses reasons for administrative action :
5. Reasons for administrative action
(1) Any person whose rights have been mat erially and adversely affected
by administrative action and who has not been given reasons for the action
may, within 90 days after the date on which that person became aware of the
action or might reasonably have been expected to have become aware of the
action, requ est that the administrator concerned furnish written reasons for
the action.
(2) The administrator to whom the request is made must, within 90 days
after receiving the request, give that person adequate reasons in writing for
the administrative action.
(3) If an administrator fails to furnish adequate reasons for an
administrative action it must, subject to subsection (4) and in the absence of
proof to the contrary , be presumed in any proceedings for judicial review that
the administrative action was taken without good reason.
(4) (a) An administrator may depart from the requirement to furnish
adequate reasons if it is reasonable and justifiable in the circumstance s and
must forthwith inform the person making the request of such departure .
23 Applicants’ Heads of Argument, par 24
24 Par 41, p16, Founding Affidavit
(b) In determining whether a departure as contemplated in paragraph (a) is
reasonable and justifiable, an administrator must take into account all relevant
factors,
Including:
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of the administrative
action concerned;
(iii) the nature and the extent of the departure ;
(iv) the relation between the departure and its purpose;
(v) the importance of the purpose of the departure; and
(vi) the need to promote an efficient administration and good
governance .
(5) Where an administrator is empowered by any empowering provision to
follow a procedure which is fair but different from the provisions of subsection
(2), the administrator may act in accordance with that different procedure .
(6) (a) In order to promote an efficient administration, the Min ister may, at
the request of the administrator , by notice in the Gazette publish a list
specifying any administrative action or a group or class of administrative
actions in respect of which the administrator concerned will automatically
furnish reasons to a person whose rights are adversely affected by such
actions, without such person having to request reasons in terms of this
section.
(b) The Minister must, within 14 days after the receipt of a request referred to
in paragraph (a) and at the cost of the relevant administrator, publish such list,
as contempla ted in that paragraph.”
[41] On a proper construction and interpretation of s ection 5 of PAJA , the sub-
section allows a person whose rights are affected by an administrative decision and
who has not25 been given reasons for the decision, to request reasons for such
decision within a stipulated time -period. The relevant administrative official is obliged
to provide the written reasons within 90 day s after receiving the request26 and those
reasons are to be adequate, failing which, it is presumed in terms of section 5(3) ,
that the administrative action was taken “without good reason”.
[42] In the event where the applicants are of the view that the decision is a non -
decision and/or that no adequate reasons are/were provided, they could have
prevailed upon the provisions of section 5(2) on the basis that the administrative
officials were requi red to provide adequate reasons in writing for the ir administrative
action s yet failed to do so . This course of action was not taken in this matter . To the
extent that the applicants allege and hold the view that the reasons provided in the
RSDOs written d ecisions are either inadequate, objectively unintelligible and
therefore amount to non -decisions , I agree with counsel for the respondents that
section 5(2) provides a mechanism and a nother internal remedy which the applicants
could and should have utilise d in the circumstances .
[43] To support this view , and with reference to the judgment in Director -General,
Home Affairs and Others v Link and Others27, Sher J writing for the Full Court of
this Division28, clarifies the position regarding the furnishing of adequate reasons to a
person in terms of section 5(2 ) of PAJA , as follows:
“[47] Before moving on I wish to express a word of caution. The
interpretation which I have adopted in relation to ss8(3) and 8(4) must
not be understood as granting a licence to aspirant immigrants (or
25 My emphasis
26 Section 5(2) PAJA
27 2020(2) SA 192 (WCC)
28 Goliath DJP and Gamble J concurring
other foreigners), who may be dissatisfied with decisions whereby their
applications for temporary visas or permanent -residence permits have
been refused, to rush to court to review such decisions , without ado, on
the grounds that according to them inadequate reasons, or no reasons,
were provided for such decisions. Although s 8(3) of the IA provides
that any decision must be ‘accompanied’ by the reasons for it, ss 5(1)
and 5(2) of PAJA provide tha t where reasons have not been given at
the time of a decision being taken the affected party may request the
furnishing thereof within 90 days from becoming aware of the decision,
whereupon the administrator shall furnish ‘adequate’ reasons, in
writing, wi thin 90 days. Notwithstanding that the provisions of s 5(2) of
PAJA are phrased in permissive terms, aggrieved parties will be
expected in instances where adequate reasons were not provided at
the time of the decision, to formally request such reasons, as was done
in this matter, and will surely not be permitted to go to court without
doing so. Only in instances where, pursuant to this, inadequate (or no)
reasons are provided, will an aggrieved party possibly be entitled to
approach a court to exempt them from exhausting their internal
remedies, and to review the decision in question. And of course,
whether exemption should be granted is a matter which must be
determined in each case on the basis of the facts and circumstances
which are before the court at the time .”29
[44] It is apparent from paragraph [47] in Link, that where reasons are provided by
the administrative official to an affected person but those r easons are considered to
be inadequate , the latter will be required to first request that adequate reasons
should be furnished to them, and in circumstances where no reasons follow, or
inadequate reasons are then provided, only then will an aggrieved person be entitled
to apply for an exemption in terms of section 7(2)(c) PAJA.
[45] Pursuant to the above assessment, I must therefore agree with counsel ’s
understanding of Sher J ’s interpretation of section 5 of PAJA as set out in paragraph
29 My emphasis
[47] of Link, that only upon a failure to have provided adequate reasons , pursuant to
the applicants’ request in terms of Section 5(2) , would the applicants have exhausted
their internal remedy(ies) to obtain such reasons.
[46] On this basis alone, the argument regarding a reservation of rights to
approach this Court on review when an appeal has already been lodged against the
RSDOs decisions , must fail and the reliance on the reservation of rights issue as an
exceptional circumstance in terms of section 7( 2)(c), is accordingly found to be
unconvincing and thus rejected. In my view, there can be no question of a
reservation of rights to proceed directly to review where an appeal to the A ppeal
Board is pending when the mechanism avai lable in section 5 of PAJA was not
exhausted.
[47] Reverting to what I refer to as th e guidelines or pointers in Nichol regarding a
determination as to whether exceptional circumstances exist for the granting of an
exemption , aside from the applicants’ d enial that the Ukraine had gained the upper
hand in the war and their questioning of the officers’ reliance on the numerous media
reports referred to in NR4, no explanations (other than the reservation of rights
argument) are provided nor are there any cir cumstances set out as to why this
matter requires the Court’s immediate intervention on review rather th an the
applicants’ first exhausting internal remedies.
[48] Furthermore, from the facts presented by the applicants, their status at the
time of instituting the review was the same as at the time of lodging the appeal. In
other words, the applicants, in view of the pending appeal, have temporary status in
South Africa , meaning that they may rem ain in the country pending the appeal
outcome. Insofar as facts are alleged regarding the Russia -Ukraine war, it is
common cause that at the time of the institution of the review, the war had not
ended .
[49] Thus, to the extent that the existence and effect of the war in the Ukraine is in
itself to be regarded as an exceptional circumstance warranting the granting of an
exemption , the only point to make is that th is issue relates to the merits of the
review , which is an as pect I make no finding on at this stage given that the
respondents raise the non -compliance with section 7(2)(a) of PAJA as a matter
requiring the Court’s determination first. Furthermore, the applicants provide no
proof that the available remedy of an ap peal against the RSDOs decisions would not
provide effective redress for their complaint. To add, the appeal s are already before
the A ppeal Board and while it is not uncommon that these processes take time , on a
reading of the appeals, it cannot be excluded that the outcome of such appeals may
be favourable to both applicants.
[50] After hearing the appeal, the A ppeal Board may confirm, substitute or set
aside a decision in terms of section 26(2) of the Ac t. Section 26(3) grants the AB
wide ranging powers which includes but are not limited to inviting the UNHCR
representative to make oral or written submissions, call ing for persons to appear and
provide information and conduct ing an investigation and enquir y of its own accord .
Legal representation of an appellant is allowed in t erms of section 26(4) of the Ac t.
Thus, by all accounts, an appeal as an internal remedy is an app ropriate mechanism
to provide the applicants with effective redress for their complaint against the
decisions of the RSDOs.
[51] The attorney’s argument that there are currently no Appeal Board appointees
available to hear appeals is unsubstantiated. This statement is made in his heads of
argument a nd reliance is placed on annexure NR130, yet there are two annexures
NR1 in the application and neither relate to information regarding officials available
or not available to hear the appeals in terms of section 26 of the Act .
[52] Furthermore, there i s no evidence before this Court that the Appeal Board , the
RSDOs or the respondents have in any way frustrated the applicants ’ efforts and
attempts at obtaining effective redress in terms of the available internal remedies31.
Aside from a late Ru le 53 record, which was condoned, the facts in this matter
indicate that the applicants failed to request adequate reasons from the RSDOs as
envisaged in section 5(2) of the Act and Link, thus it cannot be concluded that that
they took all reasonable steps to exhaust available internal remedies.
30 Heads of argument, par 15
31 Koyabe, par [47]
[53] As indic ated earlier in the judgment, section 5(2) provides a mechanism for
the applicants where inadequate reasons were provided or where the reasons
provided amounted to a non -decision. Aside from an appeal, section 5(2) would have
been an available, effective and adequate internal remedy had it also been utilised in
the circumstances.
[54] The further point to make is that an applicant’s view that he or she has good
grounds for review and th erefore that is to be regarded as an exceptional
circumstance forming the basis for a section 7(2)(c) exemption , was rejected in
Nichol32, as follows:
‘[24] Moreover, as was pointed out by counsel for both sets of respondents,
Nichol’s contention in this regard ‘puts the cart before the horse’. It is based on
the proposition that Nichol is entitled to be exempted from complying with the
requirements of s 7(2)(a) of PAJA and exhausting his internal remedies merely
because – so it is contended – his case on the merits of the main application is
strong. This cannot be so. Taken to its logical conclusion, such an approach
would defeat the purpose of s 7(2), which requires an applicant for judicial review
to have exhau sted his or her internal remedies before resorting to review
proceedings. Allegations of procedural or substantive administrative irregularities
per se are not ‘exceptional’ in review proceedings .’33
[55] In view of the above dicta, the argument that the strength of the review or its
merits amounts to an exceptional circumstance of itself, is rejected. Similarly, alleged
copying of the written decision and alleged forgery by one officer of the other’s
decision which may constitute procedural or administrative irregularit ies, do not
constitute exceptional circumstances for purposes of section 7(2)(c).
[56] Returning to the a pplicants’ reliance on Link to support their view that they
may approach this Court directly witho ut first exhausting the internal remedies, this
argument is fraught with problems. The facts in Link are distinguishable from the
facts presented by the applicants in this matter . Link dealt with permanent residency
32 Supra, FN 13
33 My emphasis
applications which were refused, and des pite a further request for reasons for the
refusal, same were not provided to the respondents , who could not formulate an
appeal in terms of section 8(4) of the Immigration Act 13 of 2002 .
[57] The Court in Link per Sher J, exempted the respondents from exhausting the
internal remedies on the basis that no reasons, let alone proper reasons , were given
for the refusal of the permanent residency applications . Thus, the Court held that in
those circumstances, there w ere conseque ntly no decisions subject to a review or
appeal as contemplated in section 8(3) and 8(4) of the Immigration Act. In this
matter, written decision s were furnished34 but there was no subsequent request for
adequate reasons. Concluding on this aspect, the app licants were able,
notwithstanding the written decisions provided in NR4 , to nonetheless formulate an
appeal.
[58] To the extent that the applicants in this matter allege that the RSDOs should
have relied on the UNH CR country of origin status in the war and should not have
relied on other media reports and broadcasters, the issue relates to the merits of the
review but may be capable of a challenge on appeal, unlike the situation faced by
the respondents in Link.
[59] Insofar as reliance is placed on Gavric35 for the view that the requirements of
section 7(2)(a) are flexible , I point out that in Theron J’s discussion in the majority
judgment , it is evident from the facts that there was no explicit application for
exemp tion but given the exceptional circumstances where not even the decision
maker was aware of the internal remedy , to expect a formal application from Mr
Gavric, who applied for refugee status, would have resulted in being too formalistic in
the application of section 7(2) of PAJA .
[60] The exceptional circumstances in Gavric were that Mr Gavric was imprisoned
for 6 years already by the time the matter came before the Constitutional Court and
had the matter been referred either to the Refugees Appeal Board or Standing
Committee , after already having gone through three RSDO processes plus the fact
34 The applicants consider the reasons to be objectively unintelligible
35 Supra, FN 22 , para [ 54]-[65]
that Mr Gavric would have remained in detention for a further period, the
Constitutional Court found that the circums tances were “sufficiently exceptional”36 to
relax the section 7(2)(c ) requirements. An exemption from exhausting internal
remedies was thus granted.
[61] In view of the above assessment of Gavric and the circumstances in this
matter , the applicants’ r eliance on Gavric as a general proposition that section
7(2)(a) does not contain strict requirements, is misplaced. The circumstances in
Gavric were indeed exceptional and in stark contrast to those in this matter. In my
view, in the circums tances of this matter, the obligatory requirements of section
7(2)(a) read with 7(2)(c) of PAJA do not frustrate these applicants nor protect the
administrative processes from judicial scrutiny37.
[62] Having regard to the above assessment and discussion, my finding is that the
applicants do not p rove any exceptional circumstances which warrant the granting of
an exemption to them from the duty of exhau sting internal remedies in terms of
section 7(2)( a). On the question of the interests of justice, a further part of the
section 7(2)(c) enquiry, it is so that the applicants have temporary status in South
Africa pending the outcome of the appeal process .
[63] The principle of non-refoulement38, as stipulated in section 2 of the Act, grants
all three applicants protection from being returned to their country of origin39 and
serves as a fundamental safeguard and protection for the applicants in these
circumstances. Given that the applicants have t his protection, as well as the
protection of sections 10 , the right to human dignity, and 11 , the right to life, of the
Constitution40, and have an appeal pending, it cannot be said that they have proved
that the interests of justice require the granting o f an exemption from the obligation to
exhaust internal remedies .
Findings
36 Gavric, par [65]
37 Gavric, par [58]
38 Minister of Home Affairs v Tsebe [2012] ZACC 16 par [67] -[68].
39 The principle applies where there is a real risk of torture, persecution or serious harm – note, I
make no finding that these risks exist as no finding is made on the merits of the review
40 Constitution of the Republic of South Africa , 1996 – Chapter 2, Bill of Rights
[64] In conclusion, I thus find that the a pplication for exemption must fail. Th e
applicants are required in terms of section 7(2)(a) of PAJA to exhaust their internal
remedies available to them in this matter . Accordingly, it is further held that the
review application is thus premature, and the merits of such application are thus not
considered. As for the non -joinder of the Appeal Board, having considered the po int
in limine and the parties’ submissions, I am of the view that there was no need for
the applicants to have joined the Appeal Board in the review application.
[65] As the appeal body before which the appeal is pending , it has no substantial
interest in the review, which is a different process. As it is, the finding regarding non -
joinder is ultimately not material to the outcome of the section 7(2) issue and the
exemption a pplication and shall be dismissed with no order as to costs . The effect of
the refusal of the exemption application is that the review application falls to be
dismissed.
[66] The final aspects relate to the complaint about the respondents not having
knowledge of the RSDO decisions and the appeal , to which my respo nse is that the
applicants attach both decisions and both appeal documents to the founding papers
in the review and the respondents raise d technical points in opposition and
specifically state d that they do not address the merits. In those circumstances,
therefore, a perceived lack of knowledge of the merits is not fatal to the opposition of
the application. Finally, i nsofar as costs are concerned, I see no reason why costs
should not follow the result.
Order
[67] In the result, I grant the following order:
a. The point in limine (non-joinder) is dismissed. No order as to costs.
b. The application for exemption in terms of section 7(2)(c) read with section
7(2)(a) o f the Promotion of Administrative Justice Act 3 of 2000 (PAJA) is
refused.
c. The review application is dismissed with costs (scale B)
__________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances :
For Applicants: Mr Craig Smith
Instructed by: Craig Smith & Associates
Unit 8 , 10 Pepper Street
CAPE TOWN
For Responden ts: Adv Z F Hafejee
Instructed by: State Attorney
CAPE TOWN
Per: Mr N Nene