REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
l.
2.
SIG NATU RE
In the ma tter of:
REPOR TAB LE: N O /YES
O F INTE REST TO O THER JUDGE S: NO /YES
REV ISED .
23 SE PT EM BE R 2025
DA TE
VANESSA AKIMPAYE
JOHN PAUL NTAMUSHOBORA
SHIMWE ELVIN NTAMUSHOBORA
DIVINE GWIZA NTAMUSHOBORA
And
CASE NO: 19551/2020
DOH: 17 SEPTEMBER 2025
DOJ: 23 SEPTEMBER 2025
First Applicant
Second Ap plicant
Third Ap plicant
Fourth Ap plicant
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MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR GENERAL DEPARTMENT
OF HOME AFFAIRS
Second Respondent
THE CHAIRPERSON OF THE STANDING
COMMITTEE FOR REFUGEES
Third Respondent
THE CHAIRPERSON OF THE REFUGEE
APPEAL AUTHORITY, PRETORIA
Fourth Respondent
REFUGEE STATUS DETERMINATION
OFFICER, DESMOND TUTU REFUGEE
CENTRE, S LETSIETSA N.O
Fifth Respondent
REFUGEE STATUS DETERMINATION
OFFICER, DESMOND TUTU REFUGEE
CENTRE, MS KGOAHLA N.O
Sixth Respondent
This judgment has been handed down remotely and shall be circulated to the parties by way of
email / uploading on caselines. The date of hand down shall be deemed to be 23 September
2025.
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ORDER
______________________________________________________________________
1. The application for leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
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JUDGMENT
______________________________________________________________________
Bam J
Introduction
1. This is an application for leave to appeal the decision and order (order) of this court
of 11 April 2023, in which this court dismissed the respondents’ application for
rescission. The order sought to be rescinded was granted by this court on 8 June
2020, per Mokose J. The application for leave to appeal was filed on 16 July 2023
and is opposed by the applicants. The applicants had further given notice of their
intention to oppose the application for condonation filed by the respondents on 27
February 2025. For ease of reference, I refer to the parties as they were in the
application for rescission. To this end, applicants refers to Ms Akimpaye, Mr JP
Ntamushobora and their two children. The respondents are referred to as such or as
state respondents.
Legal principles on condonation
2. Condonation must be granted if it is in the interests of justice to do so. The
Constitutional Court in Brummer v Gorfil Brothers Investments (Pty) Ltd and Others,
makes the point:
‘This Court has held that an application for leave to appeal will be granted if it is in the
interests of justice to do so and that the existence of prospects of success, though an
important consideration in deciding whether to grant leave to appeal, is not the only factor
in the determination of the interests of justice. It is appropriate that an application for
condonation be considered on the same basis and that such an application should be
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granted if that is in the interests of justice and refused if it is not. The interests of justice
must be determined by reference to all relevant factors including the nature of the relief
sought, the extent and cause of the delay, the nature and cause of any other defect in
respect of which condonation is sought, the effect on the administration of justice, prejudice
and the reasonableness of the applicant’s explanation for the delay or defect.’1
3. Explaining the test for condonation with reference to the concept of good cause, which
has since been adapted into the yardstick of interests of justice, the Supreme Court
of Appeal noted in Madinda v Minister of Safety and Security, Republic of South
Africa:
‘[10]…‘Good cause’ looks at all those factors which bear on the fairness of granting the relief
as between the parties and as affecting the proper administration of justice. In any given
factual complex it may be that only some of many such possible factors become relevant.
These may include prospects of success in the proposed action, the reasons for the delay,
the sufficiency of the explanation offered, the bona fides of the applicant, and any
contribution by other persons or parties to the delay and the applicant’s responsibility
therefor.
[12]…Good cause for the delay’ is not simply a mechanical matter of cause and effect. The
court must decide whether the applicant has produced acceptable reasons for nullifying, in
whole, or at least substantially, any culpability on his or her part which attaches to the delay
in serving the notice timeously. Strong merits may mitigate fault; no merits may render
mitigation pointless.’2
4. Rule 49 (1) (b) reads in the relevant parts:
‘When leave to appeal is required and it has not been requested at the time of the judgment
or order, application for such leave shall be made and the grounds therefor shall be
furnished within fifteen days after the date of the order appealed against: …Provided further
1 (CCT45/99) [2000] ZACC 3; 2000 (5) BCLR 465 ; 2000 (2) SA 837 (CC) (30 March 2000), paragraph 3.
2 (153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) (28 March 2008), paragraphs 10, and
12.
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that the court may, upon good cause shown, extend the aforementioned periods of fifteen
days.’
Legal principles relevant to leave to appeal
5. It is settled law that an applicant for leave to appeal must persuade the court that the
appeal would have reasonable prospects of success or there is some other reason
as to why the appeal must be heard, Caratco (Pty) Ltd v Independent Advisory (Pty)
Ltd3. A mere possibility of success, an arguable case or one that is not hopeless is
not sufficient, MEC for Health, Eastern Cape v Mkhitha and Another4. If the court is
not persuaded that there are prospects of success, it must still enquire into whether
there is a compelling reason to entertain the appeal, Ramakatsa and Others v African
National Congress and Another5. The test is simply whether there are reasonable
prospects of success on appeal, Mothuloe Incorporated Attorneys v Law Society of
the Northern Province and Another6.
Whether condonation must be granted
6. The question that must first be answered is whether condonation must be granted.
The criteria is what the interests of justice demand, in the circumstances of this case.
This on its own envisages a wide and flexible enquiry. It takes into account factors
such as, the length of the delay; the explanation for, or cause of, the delay; the
prospects of success for the party seeking condonation; the importance of the issues
3 (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25 March 2020), paragraph 2.
4 (1221/2015) [2016] ZASCA 176 (25 November 2016), paragraph 17.
5 (Case No. 724/2019) [2021] ZASCA 31 (31 March 2021), paragraph 10.
6 (213/16) [2017] ZASCA 17 (22 March 2017), paragraph 18.
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that the matter raises; the prejudice to the other party or parties; and the effect of the
delay on the administration of justice, Turnbull-Jackson v Hibiscus Coast Municipality
and Others7. I have already indicated that the application for leave was filed way more
than the fifteen days as envisaged in the Rules. I commence with the explanation for
the delay. The explanation proffered appears to be marred by several shortcomings
in that it identifies or traces the official/s appointed to deal with the matter. Upon their
departure, it appears that the matter comes to a stand still. Thus, it can be safely
accepted that the explanation is weak. It does not even cover the full period of the
delay. As to the impact on the proper administration of justice, this matter has been
in and out of court on several occasions with the applicants pressing for the
enforcement of the order of 8 June 2020.
7. The applicants make the point clear in their papers that the respondents are in
contempt of court. The order of 8 June, they submit, is not subject to any rescission
nor leave to appeal. As to the state’s prospects of success, I am persuaded that the
prospects for the state are good. I say so guardedly taking into account what I am
about to set out immediately here below. The respondents suggest that it was
common cause during the rescission that the order of 8 June 2020, being the order
sought to be rescinded, was erroneously sought and granted. Broadening on this
issue, the respondents state that Rule 42 (1) (a) should have been relied upon and
not so much Rule 31 (2) (b), which is relevant to rescission of judgments in actions.
On this score, the respondents say this court erred. The submission goes further and
7 [2014] ZACC 24, paragraph 23.
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notes that had the court relied on Rule 42(1) (a), which does not require of the
respondents to demonstrate good cause, the rescission would have been granted.
Rule 42 provides in the relevant parts:
’42 Variation and Rescission of Orders
(1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby;’
8. But there is difficulty with accepting this submission as it stands. That difficulty is made
clear by the absence of any averment in the founding affidavit supporting the
rescission application that the order of 8 June had been erroneously sought and or
granted. It was not even mentioned during the state respondents’ submissions before
the court. During his address, Counsel for the state was the first to concede to this
shortcoming on the state’s case. Taking this court through the state’s amended
grounds for leave to appeal, counsel painstakingly underscored the errors committed
by the applicants, firstly in placing the review application before the court, and
secondly, in the order that was eventually sought and granted by the court, which is
premised exclusively on Part B of the applicants’ Notice of Motion. But the applicants
stood firm submitting that there were no errors.
9. In my view, it serves little or no purpose to discuss in this judgment how the matter,
which was initially set down for determination of Part A, (the urgent relief) saw the
applicants end up with relief premised exclusively on Part B of the Notice of Motion,
with the court substituting the administrator’s decision with that of its own. This, in
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circumstances where the record envisaged in Rule 53 had not even been furnished
and before the applicants had supplemented their grounds for review. It is clear to me
that condonation for the late filing of the application for leave must be granted.
10. Fortifying my view is the reasoning of the Court in Trencon Construction (Pty) Limited
v Industrial Development Corporation of South Africa Limited and Another:
‘[38] In Johannesburg City Council, the Court acknowledged that the usual course in
administrative review proceedings is to remit the matter to the administrator for proper
consideration. However, it recognised that courts will depart from the usual course in two
circumstances:
“(i) Where the end result is in any event a foregone conclusion and it would merely be a
waste of time to order the tribunal or functionary to reconsider the matter. This applies more
particularly where much time has already unjustifiably been lost by an applicant to whom
time is in the circumstances valuable, and the further delay which would be caused by
reference back is significant in the context.
(ii) Where the tribunal or functionary has exhibited bias or incompetence to such a degree
that it would be unfair to require the applicant to submit to the same jurisdiction again.”
[40] The Supreme Court of Appeal in Gauteng Gambling Board seems to have added
another consideration, whether the court was in as good a position as the administrator to
make the decision. For this, it noted that the administrator is “best equipped by the variety
of its composition, by experience, and its access to sources of relevant information and
expertise to make the right decision.’8
8 (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015), paragraphs 38,
40.
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Whether leave to appeal should be granted
11. As to whether leave to appeal the order pertaining to the rescission must be granted,
I am persuaded, with reference to the very ground that I discussed in the context of
condonation, that another court would come to a different finding. In all probability,
that will lead to the full ventilation of the issues in this matter. The matter will thus be
brought to finality having followed an orderly process.
Order
1. The application for leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
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N.N BAM J
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
Date of Hearing: 17 September 2025
Date of Judgment: 23 September 2025
Appearances:
Counsel for the Applicants: Adv A Granova, with her Adv L
Pretorius
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Instructed by: Kennedy Gihana Attorneys
Paul Kruger Street, Pretoria
Counsel for the Respondents: Adv D.T Skosana SC, with him
Adv S.N Maseko
Instructed by: State Attorney
Thabo Sehume Street, Pretoria