REPUBLIC OF SQ.UTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
( l) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO ~
Date: 7 May 2025 Evan der Schyff
In the matter between:
LAWYERS FOR HUMAN RIGHTS
and
MINISTER OF HOME AFFAIRS
DIRECTOR GENERAL OF HOME AFFAIRS
In re:
PHINDILE PHILILE MAZIBUKO
LAWYERS FOR HUMAN RIGHTS
LEGALWISE SOUTH AFRICA (PTY) LTD CASE NO.: 14238/21
Applicant
First Respondent
Second Respondent
First Applicant
Second Applicant
Third Applicant
CHILDREN 'S INSTITUTE
and
MINISTER OF HOME AFFAIRS
DIRECTOR GENERAL OF HOME AFFAIRS
JUDGMENT
Van der Schyff J
Introduction Amicus Curiae
First Respondent
Second Respondent
[1] This is an application for leave to appeal against the judgment and order handed
down on 20 March 2025. The applicant in this application for leave to appeal, the
Lawyers for Human Rights (LHR), raised three grounds of appeal.
[2] Brevitatis causa, the issues as set out in the judgment dated 20 March 2025 are not
repeated herein but referred to with the assumption that this judgment and the
judgment dated 20 March 2025 will be read conjunctively.
[3] The principles that underpin the consideration of an application for leave to appeal
are trite.1 Both parties reiterated thos.e principles in their respective heads of
argument. It is not necessary to repeat the same in the judgment.
The challenge to the court's authority
[4] The LHR contends that the court granted an extension of the suspension order after
its expiry and in the absence of jurisdiction in the judgment of 20 March 2025. The
issue of the court's authority to deal with the extension application has been dealt
with in the judgment.
1 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25
November 2016) paras [16) and [17), Ramakatsa and Others v African National Congress
(724/2019) [2021) ZASCA 31 (31 March 2021) para [10).
2
3
[5] The facts of this case are unique and have been set out in the judgment. It need not
be repeated here. It is significant that the LHR doe_s not take issue with the factual
background as set out in the judgment. The matter' is distinguishable . It is common
cause that the court had the necessary authority to con.sider the interim extension
application . For the reasons set out in the judgment , and in the particular factual
context of this matter, the LHR's contention that the court's authority to grant the
order evaporated while the court was already seized with the matter does not hold
water.
[6] I pause to reiterate that it is not for a court that granted a particular order to declare
or consider that order a nullity. The court was not faced with a collateral challenge
as to the validity of an order granted by a lower court. Where a party to the
proceedings in which an order was granted takes issue with the court's authority to
have granted an order, it should challenge the order on appeal. In this matter, no
appeal has been instituted against the order dated 16 January 2025. LHR's
contradictory position was only raised in the heads of argument later filed. When the
extension application was heard on 12 March 2025, the order dated 16 January
2025 stood firm.
[7] I hold the view that another CfolUrt would not, in the peculiar and particular factual
context of this matter as set out in the judgment of 20 March 2025, where the
granting of the order dated 16 January 2025, to which all parties agreed, was not
challenged on appeal, come to a different conclusion. As a result, leave to appeal is
not granted on the first ground of appeal.
The remaining grounds of appeal
[8] After considering the sec::ond and third grounds of appeal, I am not of the view that
another court would come to a different conclusion . The judgment and order of 20
March 2025 were granted after I considered all the points raised by the respective
parties. The fact that a particular issue was not addressed in the judgment does not
mean that it was not considered .
...
3
4
[9] In light of the fact that no individual is prevented from approaching the court
challenging a decision taken by the respondents to block that individual 's identity
document, the interest of justice is not impugned or offended by the orders granted.
As a result, leave to appeal is not granted on the second and third grounds of appeal.
Costs
[10] I am of the view that the Biowatch principle applies. The state respondents are thus
obliged to pay the applicant's legal costs even though the application for leave to
appeal stands to be dismissed. Both parties employed more than one counsel.
ORDER
In the result, the following order is granted:
1. The application for leave to appeal is dismissed.
2. The Respondents in the application for leave to appeal, jointly and severally,
the one to pay the other to be absolved, are to pay the Applicant 's (Lawyers
for Human Rights') costs, including the costs of two counsel, on scale B.
,.,.
E van der Schyff
Judge of the High Court
Delivered : This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines. In the event that there is a discrepancy between the date the judgment
is signed and the date it is uploaded to Caselines , the date the judgment is uploaded to
Caselines is deemed to be the date that the judgment is handed down.
For the applicant:
With:
Instructed by:
4 Adv. J. Shima
Adv. C. Makhajane
Bowman Gilfillan Inc.
For the respondents :
With:
And:
Instructed by:
Date of the hearing:
Date of judgment: 5
5 Adv. A.T. Ncongwane SC
Adv. B. Ledwaba
Adv. N. Rasalanavho
State Attorney
5 May 2025
7 May 2025