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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025 -046181
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE
SIGNATURE
In the matter between:
M[…] K[...] Applicant
and
MINISTER OF HOME AFFAIRS Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 11 April 2025 .
Summary: Urgent application seeking an interdict pending the final
determination of a review application. On application of the OUTA principle,
launching of a review application does not entitle an applicant for review to an
interdict pending the outcome of the review application. A statutory function
once performed is incapable of being suspended by a Court of law. Although
the application was heard as one of urgency, the applicant is not entitled to a
final relief of an interdict. The essential requirement of clea r right has not been
demonstrated. None of the rights of the children of the applicant are affected
as such no protectable right s of theirs require protection by a remedy of an
interdict. Exercise of statutory function is incapable , absent mala fide exercise
thereof, of being interdicted. Held: (1) The app lication is heard as one of
urgency in terms of Rule 6(12) of the Uniform Rules of Court. Held: (2) The
application is dismissed. Held : (3) The re is no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] The urgent Court of this Division is inundated with immigration cases. The
majority of cases involves illegal foreigners seeking to extend their stay in the
Republic for reasons that they had launched PAJA judicial reviews against their
rejection of asylum visas. In most instances, like in the present application, the
Minister of Home Affairs or the Department of Home Affairs choose not to
oppose such applications. Inasmuch as this Court is appreciative and
acknowledges capacity challenges in the office of the State Attorney, the proper
administration of justice is handicapped by the absence of the Minister or the
Department when these matters are heard in Court.
[2] More often than not applicants, to their own advantage, of course, fail to
disclose all the relevant facts that will enable a Court to disseminate justice and
exercise proper judicial authority as enjoined by section 165 of the Constitution.
At the very least, this Court expects the Minister or the Department officials to
depose to an explanatory affidavits, and most importantly avail the relevant
documents. This proposed benevolence on the part of the relevant officials will
go a long way towards a proper administration of justice and effective exercise
of judicial authority. To my mind, such is a gesture of accountability
contemplated in section 195(1)(f) of the Constitution1.
[3] The above said, this is an unopposed urgent application in terms of which, the
applicant, Mr M[...] K[...] (Mr K[...]), firstly seeks audience on an urgent basis
within the contemplation of Rule 6(12) of the Uniform Rules of this Court.
Secondly, he seeks reliefs that (a) pending the finalisation of Part B, the Form
23 ( Notices by Immigration Officer to Person to Appear before Director
General ) issued in terms of section 33(4)(c) of the Immigration Act, dated 31
March 2025 be suspended; (b) pending the finalisation of Part B, the
respondents be ordered to issue and/or extend the asylum permit of the first
applicant; (c) interdicting the respondents from initiating any process to detain
and/or deport and/or order the first applicant to depart from the Republic of
South Africa pending the final determination of Part B; and (d) payment of costs
on attorney and client scale.
Brief factual exposition
[4] Mr K[...] is a foreign national of the Democratic Republic of Congo (DRC). He is
a self -professed singer. When he was in the DRC, he used to sing songs which
criticised the ruling People’s Party for Reconstruction and Democracy (PPRD).
He was an ordinary member of the Movement of the Liberation of Congo
(MLC). He participated in the activities of MLC as a local singer at the events
organised by the MLC.
[5] In one of the meetings held at a secret location in Kinshasa during 2008, the
government security forces infiltrated such a meeting. The attending members
were assault ed, arrested and brutally killed. Following this incident, Mr K[...]
lived in fear and received threats of a political nature. Both his parents, brother
and sister were killed and their dead bodies were displayed outside his
1 Section 195(1)(f) Public administration must be governed by the democratic values and principles
enshrined in the Constitution, including the following principles - (f) Public administration must be
accountable.
homestead. Owing to the above situation, he fled DRC through a truck that was
travelling to South Africa through Zimbabwe and Zambia.
[6] He arrived in South Africa around June 2008. I interpose to mention that, Mr
K[...] vaguely testified that in June 2008, he applied to be recognised as an
asylum seeker. Perplexingly, the asylum seeker temporary visa attached to the
founding papers of Mr K[...] was issued on 12 March 2024. The visa was to
expire on 20 August 2024. One of the conditions were that Mr K[...] was booked
for appeal hearing on 20 August 2024. With the benefit of the benevolence
mentioned earlier, this Court would have been wised up to the correct facts to
demystify or better still detangle this apparent cobweb.
[7] It must be so, as it is often the case with immigrants who enters South Africa
not using the recog nised port of entry, that from 2008 to March 2024, Mr K[...]
was an undocumented illegal foreigner in South Africa. In South Africa, the self -
confessed singer worked as motorbike driver doing deliveries. During 2016, Mr
K[...] married one Ms Kunga Ngemba Delice, a Congolese national. Two minor
children were born in South Africa and their births were registered in South
Africa. The two minor children were mentioned as the second and third
applicants (Ms N[...] M[...] C[...] K[...] , born on 20 June 2018; and Mr K[...] M[...]
B[...], born on 25 April 2021). I interpose to mention that given the ages of the
minor children, they do not possess a legal standing to litigate in their own
rights. Nowhere in the founding affidavit does Mr K[...] aver that he is, in his
capacity as their parent and legal guardian, litigating on their behalf.
[8] On or about 16 August 2023, Mr K[...] received correspondence from the
Department of Home Affairs to report to the Pretoria Refugee Reception Centre
(PRRC) to meet with the Refugee Status Determination Officer (RSDO) in order
to finalize outstanding administrative matters of his claim to be a refugee. At
that meeting an interview on other matters related to his application for asylum
may have been included.
[9] In his founding papers, Mr K[...] is economical with regard to the events of the
meeting of 16 November 2023 with the RSDO. It is unclear as to what obtained
with regard to his mentioned application for asylum and the administrative
issues relating to his claim of being a refugee. Tersely, he averred that all what
happened is the handing over of a notice of appeal and an instruction to
commission an affidavit at the police station, which he duly complied with. I
interpose to mention that an explanatory affidavit by Ms Bridgette Mantutule
Morudi, the RSDO, would have illuminated facts to assist this Court.
[10] An appeal was indeed launched, to which decision, this Court is none the wiser.
An appeal hearing sat on 27 August 2024. Vaguely, Mr K[...] testifies about a
first hearing where he was offered the services of an interpreter. He laments
that at the appeal hearing, he was not afforded the services of an interpreter as
a French speaking person. The impugned decision of the appeal body records
that Mr K[...] waived the right to an interpreter. Nonetheless, on 16 October
2024, a member of the Refugee Appeals Authority of South Africa (RAASA), the
erudite Ms Z B[...], handed down a detailed outcome. The conclusion reached
by Ms B[...] was that (a) the appeal of M[...] K[...] is dismissed . Refugee
protection is accordingly denied; (b) the Registrar of RAASA is instructed to
finalise the matter by serving the decision on Appellant and the Department.
[11] Resultantly, on 31 March 2025, the Immigration Officer exercised a statutory
power bestowed on him by section 33(4)(c) of the Immigration Act by issuing a
notice to Mr K[...] calling upon him to appear before the Director General of the
Department of Home Affairs (DoH). The reason for the appearance was for him
to bring along his passport and bus or flight ticket within 14 days.
[12] On or about 3 April 2025, Mr K[...] launched the present application in two parts.
The part B, which is not presently before this Court is, a review of the decision
of the RSDO, the date of which is unknown and the decision taken by Ms B[...]
on 16 October 2024. I pause to mention that service of the application upon the
Minister has been effected by electronic mail contrary to Rule 4(9) of the
Uniform Rules of this Court. In terms of section 2(2) of the State Liability Act2,
2 Act 20 of 1957
service to the Minister must be effected on the State Attorney. Service was
improper. This may explain the non -appearance. Since Mr K[...] sought to be
indulged within the contemplation of Rule 6(12), the present application was
heard nevertheless.
Evaluation
[13] Minor children do not have a legal standing to litigate on their own behalf. Mr
K[...] made no averment that he is instituting the present application on behalf
of the minor children. No relief has been sought in the notice of motion in favour
of the minor children. There is no evidence that the impugned Form 23 has
named the minor children. There is no allegation that the minor children are
facing possible deportation. Nevertheless, there is no evidence that the minor
children were part of the asylum seeker’s application. Section 21B(2A) of the
Refugees Act provides that any child of an asy lum seeker born in the Republic
has the same status as accorded to an asylum seeker. Ultimately the status of
Mr K[...] is that of an illegal foreigner. Therefore , in terms of the applicable law,
the minor children acquired the status of being illegal foreigners. In terms of
section 32(2) of the Immigration Act, any illegal foreigner shall be deported. In
his founding affidavit, Mr K[...], other than reciting case authorities and
applicable international charters, makes no case as to which of the minor
children’s rights are being harmed or threatened with harm . During oral
submissions, counsel for Mr K[...] attempted to make a case to the effect that
once Mr K[...] is deported, the children will be separated from their pare nt and
such a separation does not serve the best interest of the minor child ren,
contrary to section 28 of the Constitution. This is a submission made in hollow.
There is simply no such case made , properly so, in the papers before Court.
The pending review application does not seek to vindicate any of the minor
children’s rights. There is no evidence that they were part of the meeting where
the rights of Mr K[...] were allegedly trampled upon.
[14] Owing to the fact that Mr K[...] was afforded 14 days to appear before the
Director General , this Court was satisfied that an urgent relief is necessary and
Mr K[...] may not be afforded a substantial redress in due course , if the
Immigration Officer acted unlawfully or with mala fide , by issuing the so -called
Form 23.
[15] Turning to the merits of the present application, regard being had to the reliefs
sought by Mr K[...], the questions to be addressed in this judgment are (a) is
this Court empowered to suspend the issued Form 23 notice; (b) is this Court
empowered to order the Minister to extend the asylum permit; and (c) is Mr
K[...] entitled to a final relief interdicting and restraining any process to detain,
deport or order the departure of Mr K[...] pending the final determination of part
B of this application.
Suspension of the issued Form 23 notice
[16] During oral submissions, this Court raised a concern with counsel for Mr K[...],
regarding the powers of this Court to suspend a notice issued in the exercise of
statutory power. In support of a submission that a Court is so empowered,
counsel placed reliance on the decision of the learned Acting Justice Andrews
in the matter of Sattar and others v Minister of Home Affairs and another
(Sattar)3.
[17] By issuing Form 23, the Immigration Officer exercise s powers approbated to
him by section 33(4)(c) of the Immigration Act4. The section reads:
“(4) An immigration officer may, for the purposes of this Act –
(a) …
(b) …
(c) By notice in writing call upon any person to appear before
the Director -General and to give evidence or to answer
questions relevant to the subject matter of the investigation:
Provided that any such notices shall specify the time when and the
place where the person to whom it is directed shall appear, be signed
by an immigration officer, be served by an immigration officer or a
sheriff by delivering a copy thereof to the person concerned…, and
3 Marked reportable Case No 144037/2024 handed down on 09 January 2025 (WC)
4 Act 13 of 2002 as amended.
shall specify the reason why the thing is to be produced or the
evidence is to be given.”
[18] Without deciding , whether the issued Form 23 amounts to an administrative
action or not, any exercise of statutory power is subject to judicial review either
in terms of PAJA or legality review. An administrative action remains valid until
set aside by a Court with competent jurisdiction5. Before me, the applicant is
not seeking a judicial review of the Form 23. Accordingly, in my view, this Court
is not authorised to suspend an exercise of statutory power. The power is
already exercised and the only manner in which the already exercised power
may vacate is by way of a review. Sattar is not authority for the proposition that
a Court is authorised to suspend the Form 23 notice. The suspension ordered
in Sattar was part of a structural interdict. The basis for the structural interdict
was clearly spelled out by the learned Andrews AJ as follows:
“[54] … Having found that the nature of these proceedings is deemed
inherently urgent, a review of the respective Form 23 notices in the
fullness of time will still render the Applicants vulnerable to arrest and
deportation without them having been afforded an opportunity to apply
for asylum. The Applicants contended that without a court order
directing the DHA to provide them with an opportunity to apply for
asylum and have those applications decided on its merits, the
Applicants remain without a remedy. There is very real fear of the
Applicants facing imminent arrest and deportation if regard i s had to
the manner in which the Form 23 is framed.”
[19] As an indication that the suspension is part of structural interdict designed by
the learned Acting Justice , the suspension was conditioned on the applicants in
there present ing themselves to the nearest RRO , in order to be interviewed and
to show good cause , as steps towards applying for asylum. In the present
matter, Mr K[...], seemingly , went through the process of applying for asylum. In
5 MEC for Health, Province of Eastern Cape NO and Another v Kirkland Investments (Pty) Ltd t/a Eye
& Laser Institute 2014 (3) SA 219 (SCA) and Oudekraal Estates (Pty) Ltd v City of Cape Town &
others 2004 (6) SA 22 (SCA).
terms of section 24(5)(b) of the Refugees Act6, an asylum seeker whose
application for asylum has been rejected in terms of subse ction (3)(c) must be
dealt with in terms of the Immigration Act, unless he or she lodges an appeal in
terms of section 24B(1).
[20] Unlike the applicants in Sattar , Mr K[...] became a subject of the Immigration
Act effective 16 October 2024, since his appeal was rejected in terms section
24B(2) of the Immigration Act. Undoubtedly, the rejections turned him into a n
illegal foreigner.
[21] Accordingly , absent a judicial review, this Court is not empowered to suspend
the Form 23. Thus, a prayer seeking such a relief stands to fail.
A power to order extension of the asylum permit
[22] The issue of asylum visa is regulated by chapter 2 of the Refugee Act. In terms
of section 22(1) of the Refugee Act, an asylum seeker , whose application in
terms of section 21(1) has not been adjudicated , is entitled to be issued with an
asylum seeker visa , allowing the applicant asylum seeker , to sojourn in the
Republic temporarily, subject to such conditions as may be imposed. On 12
March 2024, Mr K[...] was accorded the entitlements contemplated in section
22 and was issued with a temporary visa. As at present, the application of Mr
K[...] has been adjudicated upon. Where section 22 refers to an applicant, it
refers to an applicant contemplated in section 21(1)(b) of the Refugee Act.
[23] Therefore, section 22(1) does not have an applicant for a judicial review in
mind. Such being the present legal position, where an application contemplated
in section 21 has been adjudicated, an entitlement to a temporary asylum visa
falls away. This view is underpinned by a proper read of section 22(4), which
provides that the visa referred to in subsection (1) may, pending the decision on
the application in terms of section 21, from time to time be extended for such
period as may be required. As pointed out earlier, once an application is
6 Act 130 of 1998 as amended.
rejected the asylum seeker loses any protection s in terms of the Refugee Act .
Section 21(4) provides that no proceedings may be instituted or continued
against any person in respect of his or her unlawful entry into or presence in the
republic if such a person has applied for asylum until decisions contemplated in
section 24, 24A, or 24B have been made. This protection does not extend to a
situation where a judicial review pends.
[24] Accordingly, once the Refugee Act protection evaporates, this Court is not
empowered to afford a supposed asylum seeker any of the protections in the
Refugee Act. In terms of section 1 of the Refugee Act, asylum means a refugee
status in terms of the Act. An asylum seeker means a person who is seeking
recognition as a refugee in the Republic. A refugee status is acquired by a
person who fits the statutory provisions of section 3(a) -(c) of the Act. A decision
has already been made that Mr K[...] does not fit the statutory requirements in
section 3. Therefore, he is not an asylum or an asylum seeker anymore.
[25] Resultantly, an order compelling an extension of a temporary visa is not
capable of being made by this Court. The temporary visa that was once issued
to Mr K[...] has expired. Expiry refers to a point in time when something comes
to an end or stops being valid. If that state is reached, extension becomes
impossible. Extension generally refers to something that is added to make
something longer, larger, or more extensive. Mr K[...] is bound to fail on this
relief.
[26] Since the applicable law is that , having gone through the process designed by
the Refugee Act, a person must be dealt with in terms of the Immigration Act ,
section 1 of the Act defines a foreigner to mean an individual who is not a
citizen. The section further defines an illegal foreigner to mean a foreigner who
is in the Republic in contravention of the Act. Undoubtedly, Mr K[...] is a
Congolese and not a citizen of the Republic. He is in the Republic without any
documentation permitting him to be in the Republic, as such an illegal foreigner.
In terms of section 32(1) of the Immigration Act, an illegal foreigner shall depart
unless authorised by the Director -General to remain in the Republic pending his
or her application for a status .
Is Mr K[...] entitled to a final order of an interdict?
[27] An interdict is a special discretionary remedy aimed at protecting protectable
rights. As a departure point, a review application is not a protectable right, to be
insulated by an interdict ory relief7. In order to obtain a final interdictory relief , an
applicant must demonstrate a clear right. A right to launch a review is not a right
to be preserved pendente lite. Mr K[...] seeks to protect a right to fair and lawful
administrative action. As confirmed in OUTA , an interdict is meant to protect
future conduct and not decisions already made. On his own version , his right to
fair and lawful administrative action as guaranteed to everyone in section 33 of
the Constitution , was trampled upon on 27 August 2024. Accordingly there is
nothing to protect at this stage. The remedy of Mr K[...] is a review in terms of
PAJA or legality and rationality principle8. The issue whether or not affording
him a French speaking interpreter amounts to procedura l unfairness would be
decided in due course. This Court expresses it s own doubts. The notice of
appeal was completed by manuscript in English.
[28] Mr K[...] fears a deportation. Section 34 of the Immigration Act authorises
deportation and detention of illegal foreigners. Should Mr K[...] be ultimately
deported, the Minister would not be acting unlawfully thereby. As an illegal
foreigner, Mr K[...] is not entitled to remain in the Republic. Section 32(2) of the
Immigration Act is une quivocal. An illegal foreigner shall be deported. In Gool v
Minister of Justice and another9, it was confirmed that unless allegations of
mala fides are made a Court does not readily interdict the exercise of statutory
powers. The Gool decision received an imprimatur in OUTA .
[29] Having failed to demonstrate a clear right that is to be harmed, Mr K[...] is not
entitled to a final interdict ory relief.
Conclusions
7 See National Treasury and others v OUTA 2012 (6) BCLR 1148 (CC) at para 50.
8 See Ithala SOC Ltd v SARB and others (010146/2022) [2022] ZAGPPHC 784 (14 October 2022)
para 14.
9 1955 (2) SA 682 (CPD).
[30] In summary, this Court is satisfied that the present application deserved to be
heard as one of urgency. This Court is not empowered to suspend the Form 23.
This Court is not empowered to order the extension of a non -existent temporary
asylum visa. Mr K[...] has failed to make a case for a final interdict ory relief.
Accordingly, the application must fail.
[31] On account of all the above reasons, I make the following order :
Order
1. The application is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of this Court. Non compliance with the Rules is hereby
condoned.
2. The application is dismissed.
3. There is no order as to costs.
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Applicant : Mr B Baliso
Instructed by: Mapingire & Associates Inc, Pretoria
Date of the hearing: 08 April 2025
Date of judgment : 11 April 2025