IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 2025 -013010
In the matter between:
SAMSON NGIRI YABANDI APPLICANT
and
BORDER MANAGE MENT AUTHORITY
OF SOUTH AFRICA FIRST RESPONDENT
MINISTER OF HOME AFFAIRS SECOND RESPONDENT
DEPARTMENT OF HOME AFFAIRS THIRD RESPONDENT
Neutral citation: Ngiriyabandi v Border Management Authority of South Africa and
Others (Case no 2025 -013010 ) [202 5] ZAWCHC 222 (27 MAY 2025 )
Coram: NUKU J
Heard : 19 February 2025
Order made on : 19 February 2025
Reasons d elivered :27 May 2025
Summary: Interdict – Whether it is competent for a court to set aside an administrative
decision that has not been challenged by way of a review application – application for
an interdict to set aside the decision to refuse the applicant entry into the Republic of
South Africa dismissed with costs.
ORDER
The application is dismissed with costs
JUDGMENT
Nuku J
[1] The applicant, a 75-year-old Burundian national arrived at the Cape Town
International Airport on 28 January 2025 where he was refused entry into the Republic
of South Africa. His refusal of entry was on account of him being in possession of a
visitor’s visa which included a condition that he should report to the port of entry on or
before 26 January 2025 . The immigration officer that attended to the applicant took the
view that the applicant’s visa had expired and hence refused him entry.
[2] On the same day, the applicant , who was assisted by his attorneys of record in
this matter, lodged an appeal with the second respondent, in terms of section 8 (1) of
the Immigration Act 13 of 2002 (Immigration Act) against the decision refusing him
entry.
[3] On 31 January 2025, Mr Wesley Fester , who is in the employ of the first
respondent and who had received the applicant’s appeal, requested further
documentati on from the applicant’s attorneys.
[4] Whilst the appeal was still pending , the applicant approached the Court for
urgent relief on 31 January 2025 and without notifying any of the respondents . The
substantive relief that t he applicant sought was a rule nisi returnable on 18 February
2025 requiring the respondents to show cause why:
‘4.1 The first respondent’s decision , taken on 28 January 2025, to refuse the
applicant entry into the republic be set aside;
4.2 The applican t be allowed to enter and remain in South Africa on his
visitor’s visa until 20 March 2025.’
[5] The matter was in Court on 31 March 2025 when the rule nisi was issued . As the
rule nisi was to operate as an interim interdict , the respondents were obliged to allow
the applicant entry into the republic pending the return date.
[6] The respondents opposed the application, and t he matter came before me on 18
February 2025 for argument on w hether to confirm or discharge the rule nisi . I
postponed the matter to 19 February 2025 when argument proceeded.
[7] As was pointed out on behalf of the respondents, the relief that the applicant
sought was a final interdict setting aside the decision to refuse him entry . But the
applicant had not instituted any review proceedings. Instead, he was seeking an
interdict setting aside an administrative decision which had not been challenged by way
of review and the question was whether that was co mpetent.
[8] It was submitted on behalf of the respondents that based on the so -called
Oudekraal principle , an administrative action has legal consequences until and unless
set aside by a court of competent jurisdiction.
[9] Counsel for the applicant w as constrained to concede that it would not be
competent for this Court to set aside a decision under the pretext of interdictory relief
and in the absence of a challenge by way of a review application.
[10] What was more in this matter was the fact that the relief sought was not only the
setting aside of the decision but went further in that the applicant sought a substitution
order , relief which , even where competent, is granted in exceptional circumstances. The
applicant had pleaded neither review grounds nor exceptional circumstances . As the
saying goes, the application never got off from the starting block.
[11] There is one more aspect that r equires mention. The application was launched
after an internal appeal, in terms of section 8 (1) of the Immigration Act had been l odged
but this was not mentioned at all in the applicant’s papers. To the urgent judge who
granted the rule nisi , the impress ion was created that the applicant had no other
satisfactory remedy which was clearly misleading. Even more so when it was the same
legal representative who had lodged the section 8(1) appeal.
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For applicant: M Botha
Instructed by: ZS Inc, Cape Town
For 1st to 3rd respondent s: R Appo les
Instructed by: State Attorney, Cape Town