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SNYMAN, AJ
Introduction
[1] This judgment concerns an application for leave to appeal brought by the
applicant on 16 September 2025. The matter had originally come before me for
argument on the merits on 30 July 2025, and on 4 September 2025, I handed
down judgment against the applicant, in terms of which the applicant’s
application was dismissed with costs. The application for leave to appeal was
opposed by the respondents, and both parties filed written submissions.
[2] The leave to appeal was set down for virtual hearing on 29 October 2025. Only
the applicant appeared at the hearing. At the conclusion of the hearing, I
reserved judgment. I now hand down written judgment in the application for
leave to appeal.
Leave to Appeal
[3] Leave to appeal is not there for the asking.1 This is evident from section 17(1)(a)
of the Superior Courts Act2, which provides that:
‘(a) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that:
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on a matter under consideration.’
[4] As to the meaning of ‘ reasonable prospects of success’, the Court in Member
of the Executive Council for Health, Eastern Cape v Mkhitha and Another3 said
the following:
1 See J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others (2) (2019) 40 ILJ 1303 (LC) at para
5.
2 Act 10 of 2013.
3 [2016] JOL 36940 (SCA) at paras 16 – 17. See also Ramakatsa and Others v African National Congress and
another [2021] JOL 49993 (SCA) at para 10, where it was held: ‘The test of reasonable prospects of success
3
‘Once again it is necessary to say that leave to appeal, especially to this Court,
must not be granted unless there truly is a reasonable prospect of success.
Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave
to appeal may only be given where the judge concerned is of the opinion that
the appeal would have a reasonable prospect of success; or there is some other
compelling reason why it should be heard.
An applicant for leave to appeal must convince the court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless, is not
enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.’
[5] Next, and as to what would constitute a compelling reason for another Court to
entertain the appeal, the Court in Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd4 had the following to say:
‘... A compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future disputes. But here
too, the merits remain vitally important and are often decisive. ...’
Analysis
[6] The applicant has raised four indi vidual grounds for seeking leave to appeal ,
which are as follows. First, the applicant contends that I erred in making a costs
award against him, as he seeking to assert a constitutional right. Second, he
submits that I erred by failing to mero motu enquire into the lawfulness and
regularity of the UNHCR Report of 15 January 2012 and the notice published
by the S CRA revoking the refugee status of employees from Angola on 14
postulates a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In other words, the appellants in this matter need to convince this
Court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be
remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that
there are prospects of success must be shown to exist …’.
4 2020 (5) SA 35 (SCA) at para 2. See also Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty)
Ltd and Others 2013 (3) SA 315 (SCA) at para 5; Minister of Justice and Constitutional Development and Others
v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA) at para 23; Tshwane City and Others v
Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) at para 6.
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August 201 3. Thi rd, the applicant argues that I failed to give effect to the
‘qualitative assessment’ prescribed by the earlier judgment in Wright J in this
same matter on 27 July 2022 . And finally, the applicant contends that I erred
by failing to grant the applicant condonation for the late filing of his review
application under PAJA, as I negated pertinent considerations. For the reasons
to follow, it is my view that none of these grounds have any substance, and the
applicant simply has no prospects of success on appeal in respect of the same.
[7] I will first deal with the issue that I needed to mero motu enquire into the validity
/ lawfulness of the UNHCR Report of 2012 and the SCRA Notice of 2013, and
then invite the parties to make submissions on the same . This contention by
the applicant is simply patently wrong, and without any basis in law. It is not for
a Court to mero motu enquire into the validity , legality or lawfulness of
administrative actions. This can only be done pursuant to specific application
being made by a litigant under PAJA in which the administrative action is
actually challenged, and in which the grounds for seeking such review is
specifically pleaded and a case for doing so is properly made out. As correctly
pointed out by the respondents, the two administrative actions referred to by
the applicant, if one can call it that, involves different parties and different
circumstances, never brought into this matter by the applicant. For me to mero
motu decide that UNHCR Report of 2012 and the SCRA Notice of 2013 is
unlawful, in the absence of any actual challenge, is an untenable proposition.
[8] It must be remembered that the UNHCR Report of 2012 and the SCRA Notice
of 2103 applied to all refugees from Angola, and not just the applicant. The
applicant, insofar as it concerns hi s own refugee status s pecifically, received
his own notice of intention to revoke his refugee status on 17 July 2013, which
his own notice of intention to revoke his refugee status on 17 July 2013, which
led to the process that only ultimately culminated in his own status as refugee
being withdrawn many years later. If the applicant wanted to challenge the
lawfulness / legality of his own notice of 17 July 2013 on the basis that the
founding instruments for it, for the want of a better description, , was somehow
unlawful or irregular or invalid, he needed to bring a specific review application
to do so. That he never did , and as such, these administrative actions must
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stand. In Department of Transport and Others v Tasima (Pty) Limited5 and the
Court held:
‘… No constitutional principle allows an unlawful administrative decision to
“morph into a valid act”. However, for the reasons developed through a long
string of this Court’s judgments, that declaration must be made by a court. It is
not open to any other party, public or private, to annex this function. Our
Constitution confers on the courts the role of arbiter of legality. Therefore, until
a court is appropriately approached and an allegedly unlawful exercise of public
power is adjudicated upon, it has binding effect merely because of its factual
existence …’
[9] The simple fact is that administrative actions remain valid and binding, and any
action taken pursuant to the same would be lawful. In Oudekraal Estates (Pty)
Ltd v City of Cape Town and Others6 the Court said:
‘Thus the proper enquiry in each case – at least at first – is not whether the
initial act was valid but rather whether its substantive validity was a necessary
precondition for the validity of consequent acts. If the validity of consequent
acts is dependent on no more than the factual existence of the initial act then
the consequent act will have legal effect for so long as the initial act is not set
aside by a competent court.
The Court in Oudekraal supra also held that a collateral challenge to the validity
of an administrative act is only available:7
‘… ‘if the right remedy is sought by the right person in the right proceedings’.
Whether or not it is the right remedy in any particular proceedings will be
determined by the proper construction of the relevant statutory instrument in
the context of principles of the rule of law.’
[10] This ratio in Oudekraal has been consistently applied over the last decade. The
Constitutional Court considered the Oudekraal principle in MEC for Health,
5 2017 (2) SA 622 (CC) at para 147.
6 2004 (6) SA 222 (SCA) at para 31
7 Id at para 35.
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Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer
Institute.8 The majority of the Court, by way of Cameron J, held as follows:9
‘The fundamental notion — that official conduct that is vulnerable to challenge
may have legal consequences and may not be ignored until properly set aside
— springs deeply from the rule of law. The courts alone, and not public officials,
are the arbiters of legality… For a public official to ignore irregular administrative
action on the basis that it is a nullity amounts to self-help. And it invites a vortex
of uncertainty, unpredictability and irrationality. The clarity and certainty of
governmental conduct, on which we all rely in organising our lives, would be
imperilled if irregular or invalid administrative acts could be ignored because
officials consider them invalid.’
[11] What the applicant is in essence propagating is a collateral challenge, under
circumstances where the applicant made out no case for it. As such, the
administrative actions will remain valid and binding. Mero motu intervention by
a Cour tis not permitted. This was made clear by the Constitutional Court in
Merafong City Local Municipality v AngloGold Ashanti Limited10, as follows:
‘This is because, unless challenged by the right challenger in the right
proceedings, an unlawful act is not void or non-existent, but exists as a fact and
may provide the basis for lawful acts pursuant to it. This leads to a logical
corollary, which this C ourt recognised in Giant Concerts, that an own -interest
litigant may be denied standing “even though the result could be that an
unlawful decision stands” …’
[12] And lastly on this issue, when the matter was originally brought and then argued
before me, the applicant made no attempt to contradict these two administrative
actions. Or differently put, he never challenged their validity or lawfulness even
in argument. It is entirely impermissible to now raise a new case in this regard
in argument. It is entirely impermissible to now raise a new case in this regard
when seeking leave to appeal. This was made clear in J & L Lining (Pty) Ltd v
National Union of Metalworkers of SA and Others (2) 11, where the Court said:
8 2014 (3) SA 481 (CC).
9 Id at para 103.
10 2017 (2) SA 211 (CC) at para 36. See also MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014
(3) SA 481 (CC) at para 64 – 66.
11 (2019) 40 ILJ 1303 (LC) at para 9.
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‘It is impermissible for the applicant to raise a new case or argument on appeal
that was never before the court a quo when the matter was decided …’. And in
Universal Service and Access Agency v MT Creations Trading Enterprise Pty
(Ltd) and Others (Leave to Appeal) 12 it was similarly held that ‘A litigant is not
allowed to make a new case in an application for leave to appeal …’.
[13] This brings me the next ground, being that I failed to give proper effect to the
earlier judgment of Wright J in this matter given in 2022 . Despite what the
applicant ba ldly says in the application for leave to appeal, nothing can be
further from the truth. I specifically dealt with the effect of the judgment of Wright
J in my original judgment, and the applicant has simply advanced nothing in the
application for leave to appeal to contradict what I have already found. I do not
intend to repeat everything that I have already said in my original judgment,
save for a referring to a few pertinent issues. Wright J in effect found that the
applicant was not given a proper opportunity to state his case before the earlier
decision to revoke his refugee status, and the learned Judge order the SCRA
to comply with a fair proced ure. It was as a result of this judgment that the
applicant was then afforded a comprehensive opportunity to state this case by
the SCRA, which actually went far beyond what was required for the ultimate
decision to revoke his refugee status to be considered procedurally fair. There
is simply absolutely no merit in what the applicant is now contending.
[14] In simple terms, and on the facts, the S CRA complied with the judgment of
Wright J by affording the applicant a comprehensive opportunity to be heard. I
am compelled to reiterate that at the end of the process, the applicant himself
made it clear that the SCRA now had all the information it would get, and
needed to proceed to make a decision based on what it now had. The applicant
needed to proceed to make a decision based on what it now had. The applicant
did not even deal, in the application for leave to appeal, with the actual facts in
this regard. This ground for seeking leave to appeal simply has no substance
at all, and there is zero prospect that another Court would come to a different
conclusion.
12 2025 JDR 1793 (GP) at para 13. See also Abn-Amro Bank NV v Hyundai Corporation 2005 JDR 1071 (SCA) at
para 21; National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339
(SCA) at paras 28 – 2; Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others (2009)
30 ILJ 269 (LAC) at para 30.
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[15] Where it comes to the gr ound relating to condonation for the late filing of the
applicant’s review application, it is a ground that is completely still born. The
insurmountable problem the applicant has, which I highlighted in my original
judgment and which the applicant has not even dealt with in the application for
leave to appeal, is that he did not apply for condonation in the first place . In
simple terms, one cannot get condonation if you do not ask for it. The applicant
did not ask for it. That must be the end of it.
[16] The applicant seeks to rely on the judgment in Ntame v MEG for Social
Development13, where the Court, according to the applicant, dealt with similar
circumstances to the case in casu, and then granted condonation in order to
vindicate a constitutional right, t aking note of that applicant's lack of formal
education, indigence, and her corresponding lack of means to pay for the
services of an attorney. The applicant’s reliance on this judgment is misplaced,
again for the simple reason what the applicant never applied for condonation,
nor did he seek to even offer the kind of explanation found in the judgment of
Ntame. In the absence of an actual application for condonation in order to show
good cause as to why the time limit of 180 days under PAJA should be
extended, a jurisdictional fact is absent, and yet again, it can only be said that
it must be the end of the matter. The applicant has no prospects of success on
appeal in this respect.
[17] This leaves only the ground of seeking leave to appeal relating to the costs
award. According to the applicant , the costs award I made against him is a
misdirection because of the general rule in constitutional litigation that an
unsuccessful litigant ought not to be ordered to pay costs . In this regard, the
applicant relies on the judgments in Affordable Medicines Trust v Minister of
Health14 and Biowatch Trust v Registrar, Genetic Resources 15 where it was
Health14 and Biowatch Trust v Registrar, Genetic Resources 15 where it was
held that in matters between the government and a private party seeking to
assert a constitutional right, if the government loses, it should pay the costs of
the other side, and if the government wins, each party should bear its own costs.
13 2005 (6) SA 248 (E) at para 25.
14 2006 (3) SA 247 (CC) at para 139.
15 2009 (6) SA 232 (CC) at para 22.
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The rationale for this rule is that an award of costs in such circumstances might
have a chilling effect on the litigants who might wish to vindicate their
constitutional rights, and may deter them from asserting their rights against the
State due to the fear of incurring an adverse costs order.
[18] But the fact that the applicant attaches the label of asserting a constitutional
right to this matter does not make it so. In fact, I am confident in saying that this
matter has nothing to do with asserting constitutional rights. The right which the
applicant sought to assert deal t with the withdrawal of a refugee status and
there is nothing constitutional about this controversy. In Ferreira v Levin NO
and Others; Vryenhoek and others v Powell NO and Others16 the Court affirmed
the long-standing practice that costs are in the discretion of the Court and, in
general, the unsuccessful party must pay, holding:
'The Court has, over the years, developed a flexible approach to costs which
proceeds from two basic principles, the first being that the award of costs,
unless expressly otherwise enacted, is in the discretion of the presiding judicial
officer, and the second that the successful party should, as a general rule, have
his or her costs. Even this second principle is subject to the first. The second
principle is subject to a large number of exceptions where the successful party
is deprived of his or her costs. Without attempting either comprehensiveness
or complete analytical accuracy, depriving successful parties of their costs can
depend on circumstances such as, for example, the conduct of parties, the
conduct of their legal representatives, whether a party achieves technical
success only, the nature of the litigants and the nature of the proceedings.'
[19] It is of course true that the so-called Biowatch principle, on which the applicant
attempts to rely, does constitute a departure from the ordinary position where it
attempts to rely, does constitute a departure from the ordinary position where it
comes to awarding costs. This was more recently described in eTV (Pty) Ltd v
Minister of Communications and Digital Technologies and Others17 as follows:
‘The scope and content of the Biowatch principle have become trite; albeit, for
purposes of this case, it bears repeating. Essentially, the general rule is that in
constitutional litigation involving private parties and the government, 'if the
16 1996 (2) SA 621 (CC) at para 3.
17 2023 (3) SA 1 (CC) at para 105.
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government loses, it should pay the costs of the other side, and if the
government wins, each party should bear its own costs'. [82] This court has
confirmed that when considering whether the Biowatch principle applies, the
crucial consideration is not the character of the parties, but the nature of the
litigation at issue.’
[20] It is in this context that applicant’s ground for seeking to leave to appeal based
on the purported application of the Biowatch principle must fail. The nature of
the litigation at stake is not constitutional litigation. The applicant is not asserting
a constitutional right. The applicant is did not launch a challenge based on a
constitutional right . The applicant never put forward a case that any of the
provisions of the Refugees Act was unconstitutional. Although it can perhaps
be said that review challenges under PAJA on the basis of legality can be said
to contain a constitutional element, for the want of a better description, that does
not make Biowatch applicable. As held in Lawyers for Human Rights v Minister
in the Presidency and Others18:
‘Despite the constitutional dimensions of the application itself, the High Court
considered the way the proceedings had been managed manifestly
inappropriate — largely on the ground of their extreme belatedness, and the
fact that they targeted an operation that was long gone and done. Indeed, the
High Court indicated that while it would never suggest that LHR would launch
a frivolous or vexatious application, 'its action in having the matter placed on
the urgent roll was uncalled for and inappropriate'. This was the basis for
awarding costs adversely to LHR. The court made an order it deemed
appropriate to protect its process and exercised its discretion in doing so.
Unless it exercised that discretion unjudicially or on a wrong principle, this court
has no basis to interfere.
Despite LHR's best efforts, it has advanced no acceptable basis on which this
Despite LHR's best efforts, it has advanced no acceptable basis on which this
court may conclude that the High Court exercised its discretion unjudicially. Nor
is the costs order here likely to have a 'chilling effect' on future litigation. The
18 2017 (1) SA 645 (CC) at para s 23 and 24 . See also Mkhatshwa and Others v Mkhatshwa and Others
2021 (5) SA 447 (CC) at para 18, where it was held: ‘ Although the interpretation of s 13 of the Act may invoke
constitutional issues, the genesis of this application is a dispute about the validity of an Anton Piller order. And I
am thus inclined to agree with the respondents' submission that this 'constitut es an attempt to bring the matter
under a broad blanket of constitutional rights, so as to enable the applicants to then rely on the Biowatch principle
…'.
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reason is that the High Court's ire about the urgency and the extreme exaction
LHR laid upon the respondents cannot by any stretch be regarded as
unwarranted. The Biowatch principles should not be abused to avoid ordinary
court process.’
[21] I am convinced that the applicant’s belated reliance on Biowatch is nothing but
contrived to escape a costs award. I do not believe that Biowatch applies in this
instance. In any event and considering that none of the other grounds for
seeking leave to appeal have any substance, seeking leave to appeal on the
only based on a costs award is misdirected. Once again, it must be reiterated
that deciding on the issue of costs constitutes the exercise of a discretion, which
can only be interfered with on appeal on limited grounds. As said in J K
Vorlaufer & Sons (Pty) Ltd v Hodge19:
‘It is trite that a trial Judge has a wide discretion in awarding costs. The
discretion should be exercised judicially upon consideration of all facts, and as
between the parties, it is in essence a matter of fairness to both sides.
In appeals against costs the question is whether there was an improper
exercise of judicial discretion, that is, whether the award is, vitiated by
irregularity or misdirection or is disquietingly inappropriate. The court will not
interfere merely because it might have taken a different view.’
[22] In addition, seeking leave to appeal only respect of costs order requires the
applicant to make out exceptional circumstances, which the applicant did not
do. This was made clear in Mukanda v South African Legal Practice Council20,
as follows:
‘In light of ss 16(2) (a)(ii), 17(1) (a) and 17(1)(b) of the Act and the case law
referred to hereinbefore, it can thus be stated that a court will not grant an
application for leave to appeal against a costs order only, unless the applicant
can satisfy the court that an appeal court would reasonably find that exceptional
circumstances exist that warrant such leave. In the absence of exceptional
circumstances exist that warrant such leave. In the absence of exceptional
19 2020 JDR 1708 (GP) at paras 8 – 9.
20 2021 (4) SA 292 (GP) at para 9. See also MEC for Local Government, Housing and Traditional Affairs, KwaZulu-
Natal v Yengwa and Others 2010 (5) SA 494 (SCA) at para 1.
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Gauteng Division, Johannesburg
Appearances:
Heard on: 29 October 2025
For the Applicant: Advocate George SP Modisa and Advocate
Asher Huhlwane
Instructed by: Umennaka Attorneys
For the Respondents: No appearance
Judgment: 7 November 2025