IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-08578
In the matter between:
KARL LARS MAGNUSSEN First applicant
EMMA LISA CAROLIN EKSTROM Second applicant
ELSA VALENTINA STINA MAGNUSSEN EKSTROM Third applicant
SIGNE LEONTINA STINA EKSTROM Fourth applicant
and
MINISTER OF HOME AFFAIRS First respondent
DIRECTOR-GENERAL, HOME AFFAIRS Second respondent
Coram: Van Zyl, AJ
Heard on: 11 July 2025
Order granted on: 22 July 2025
Reasons delivered on: 28 November 2025
Summary: Application for interdict – requirements for grant of inte rim interdictory
relief – no prima facie right – judicial deference in considering whether state function-
aries should be restricted in the exercise of their functions – similar relief previously
sought – doctrine of res iudicata – issue estoppel
_________________________________________________________________
ORDER
The application is dismissed, with costs, including counsel’s fees taxed on Scale B.
REASONS
VAN ZYL, AJ:
Introduction
1. Should the applicants be allowed to leave the Republic and return without hin-
derance despite not being in possession of the required documentation?
2. The applicants1 sought an interdict on an urgent 2 basis to proh ibit the re-
spondents from preventing the applicants’ re-entry into South Africa upon their
return from an intended journey to Sweden to visit the first applicant’s ailing fa-
ther. The interim interdict was sought pending the final review of an appeal3
and application for judicial review4 lodged by the applicants under section 8(6)
of the Immigration Act 18 of 2002 and the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) . Through the appeal and review processes, the appli-
cants were seeking the setting aside of the second respondent’s decision to
1 The first and second applicants are the third and fourth applicants’ parents.
2 The matter was initially postponed with a timetable for the delivery of papers, and by the time
of the hearing it was no longer necessary to address the question of urgency.
3 Section 8(6) of the I A: “(6) An applicant aggrieved by a decision of the Director -General con-
templated in subsection (5) may, within 10 working days of receipt of that decision, make an
application in the prescribed manner to the Minister for the review or appeal of that decision.”
4 Instituted under case number 21610/2023.
declare them "prohibited persons" as envisaged in section 29(1)(f)5 of the IA,
and thus "illegal foreigners" in South Africa, as envisaged in section 8(1)6 of
the IA.
3. The notice of motion was framed in wide terms, seeking an order (pending the
review and appeal) that the applicants be allowed to “leave and re-enter South
Africa freely on their valid passports and permits; the respondents are inter-
dicted from arresting, detaining, declaring them undesirable, refusing them en-
try or confiscating any passport, visa permit or identity document …”.
4. The applicants demanded further that the respondents, within 72 hours of the
grant of an or der in the application , had to “purge all existing APP or V -list
blocks, remove the Applicants from the Visa Stop list, deactivate every related
border alert and circulate confirmation of th ese steps to every port of entry so
that no deportation, exclusion of other punitive measure is taken against the
applicants whilst these proceedings remain pending.”
5. In oral argument coun sel for the applicants conceded that the relief sought
was unwieldy, and he suggested that all that the applicants were seeking was
permission to leave and re -enter on a single occasion, namely an intended
visit to the first applicant’s family in Sweden, as well as for the purpose of a
business meeting there.
6. There was s ome disagreem ent between counsel as to whether the relief
5 Section 29(1)(f) of the IA: ”(1) The following foreigners are prohibited persons and do not qual-
ify for a port of entry visa, admission into the Republic, a visa or a pe rmanent residence per-
mit: … (f) anyone found in possession of a fraudulent visa, passport, permanent residence
permit or identification document.”
6 Section 8(1) of the IA: “(1) An immigration officer who refuses entry to any person or finds any
person to be an illegal foreigner shall inform that person on the prescribed form that he or she
may in writing request the Minister to review that decision and - (a) if he or she arrived by
means of a conveyance which is on the point of departing and is not to call at any other port of
entry in the Republic, that request shall without delay be submitted to the Minister; or (b) in
any other case than the one provided for in paragraph (a), that request shall be submitted to
the Minister within three days after that decision.”
sought was to be classified as interim or final relief. The applicants submitted
that it was interim in nature because of the proposed narrow reformulation
thereof during argument. The respondents contended that the wide relief
sought in the notice of motion was interim in form but final in effect, 7 and the
applicants therefore had to prove the requirements for the grant of a final in-
terdict (questions such as the balance of convenience would thus not arise). I
did not think that it ultimately made a difference on the facts and in the context
of this particular matter, but accepted in fa vour of the applicants that they
needed to satisfy the requirements for the grant of interim interdictory relief.
7. This notwithstanding, I was of the view that the applicants failed to clear the in-
terim interdictory hurdles. However one looked at it, there was no denying that
the applicants sought far-reaching relief, which at its core would clothe them
with rights which they did not have and were not entitled to. An added compli-
cation for the applicant s was that this Court8 had since dismissed the appli-
cants’ application for judicial review upon which they had relied in their notice
of motion, on the basis that they had to exhaust their internal remedies under
section 7 of PAJA. All that remained was their appeal to the seco nd respond-
ent and, should that fail, fresh review proce edings would have to be brought.
This state of affairs affected the applicants’ allegations of harm, as well as the
balance of convenience.
8. The grant of the relief would, moreover, prevent the respondents from carry-
ing out their duties under the I A. This called into play the principle s of the
separation of powers and of judicial deference: A court may grant a temporary
restraining order against the exercise of statutory or executive powers only in
exceptional cases , and when a strong case for such relief has been made
exceptional cases , and when a strong case for such relief has been made
7 See Metlika Trading Ltd v Commissioner for SA Revenue Services 2005 (3) SA 1 (SCA) paras
21-23.
8 The Honourable Justice Ndita presiding.
out.9 The court must recognise and assess the impact of temporary interdicts
when dealing with those matters pertaining to the best application, operation ,
and dissemination of public resources. The question is thus not merely wheth-
er an interim interdict against a State functionary is competent , but also
whether it is constitutionally appropriate to grant the interdict.10 The court must
be satisfied that the applicant for an interdict in these types of cases has good
prospects of success in the main review, ba sed on strong grounds which are
likely to succeed.11
9. There was another elephant in the room, which related to the applicants’ pre-
vious litigation against the respondents.
Res iudicata
10. The applicants had , earlier in 2025, brought a similar application in this Court
tp enable them to visit an ill relative overseas . An interim order was gra nted
but their application for final r elief was dismissed on 11 April 2025 .12 The ap-
plicants did not apply for leave to appeal against the decision, and it accord-
ingly stands. There had, in fact, been another , similar application in 2019 , at
which stage the respondents c onsented to a court order allowing the appli-
cants to see ill relatives overseas . The respondents remarked that, at the
time, they “did not know tha t this was a litigation strategy to force t he issue
and so three similar app lications over 6 years” made them see the matter in a
different light.
11. In any event, in paragraph 19 of the April 2025 judgment the court held as fol-
lows:
9 National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA
223 (CC) paras 41-45.
10 National Treasury supra para 66.
11 Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC) para 42.
12 The Honourable Acting Justice Siyo presiding.
“I find the applicants ’ reliance on an apprehension that they would be deported curi-
ous given that they have failed to assert and establish a right to enter an d leave the
country, which if not protected by an interdict, irreparable harm would ensue. I agree
with the respondents, the applicants have failed to establish a right to be admitted in-
to the country in terms of the Immigration Act 13 of 2002.
In my judgment the applicants have failed to demonstrate an injury reasonably ap-
prehended.”13
12. In paragraph 22 of the judgment the court held:
“For these reasons, the applicants have in my judgment failed t o demonstrate the ab-
sence of any other satisfactory remedy. The respondents have a satisfactory remedy
in the appeal mechanism outlined in the Immigration Act.”
13. It was common cause , both in the present matter and the previous one, that
the real issue between the parties was whether the applicants had a right to
demand entry into the country. The respondents contend that that issue had
already been determined on 11 April 2025.
14. Res judicata14 is a doctrine that prevents the same parties from re-litigating the
same issue that has already finally been decided by a court of competent ju-
risdiction:15
“[69] Res judicata strictly means that a matter has already been decided by a compe-
tent court on the same cause of action and for the same relief between the same pa r-
ties. In Evins, Corbett JA stated that:
“Closely allied to the ‘once and for all’ rule is the principle of res judicata which
establishes that, where a final judgment has been given in a matter by a com-
13 My emphasis.
14 A matter already judged.
petent court, then subsequent litigation between same parties, or their privies,
in regard to the same subject -matter and based upon the same cause of ac-
tion is not permissible and, if attempted by one of them, can be met by the ex-
ceptio rei judicatae vel litis finitae. The object of this principle is to pre vent the
repetition of lawsuits, the harassment of a defendant by a multiplicity of ac-
tions and the possibility of conflicting decisions.”
[70] In essence, the crux of res judicata is that where a cause of action has been liti-
gated to finality between the same parties on a previous occasion, a subsequent at-
tempt to litigate the same cause of action by one party against the other party should
not be allowed. The underlying rationale for this principle is to ensure certainty on
matters that have already been decided, promote finality and prevent the abuse of
court processes.
[71] The requirements of res judicata, although trite, can be summed up as follows: (i)
there must be a previous judgment by a competent court (ii) between the same par-
ties (iii) based on the same cause of action, and (iv) concerning the same subject -
matter, or thing… the defence of res judicata requires that a party must establish that
the present case and the previous case are based on the same set of facts that have
been finalised by a c ompetent court or tribunal by the same parties on the merits of
the same cause of action.”
15. The doctrine has three key elements. The first is that the previous judgment
must have been a final one. The original case must have concluded with a fi-
nal judgmen t on the merits, not an interim or procedural ruling. In the appli-
cants’ case, the 11 April 2025 findings of this Court were final, and disposed of
the matter.
16. The second element is that the s ame parties must have been involved. The
parties in the second case must be the same as, or in privity with, the parties
in the original case. This requirement was satisfied in the present matter.
in the original case. This requirement was satisfied in the present matter.
17. Third, the same cause of action must have been involved , in connection with
15 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and others 2020 (1)
the same subject -matter. The second case must thus involve the same issue
or legal claim as the first case. In the pre sent matter, the applicants were
seeking the same relief as previously sought on the basis of es sentially the
same facts. The applicants’ status as “illegal foreigners” had not changed be-
tween the previous application and the present one.
18. The applicants argued that the doctrine was not applicable because the previ-
ous decision had been taken at the final relief stage, while the present applica-
tion was one for interim relief. I did not think that that made a difference in this
case. In Ascendis the Constitutional Court remarked: 16
“The Court in Bisonboard held that it is a well -established principle of our law that
there is a distinction between causes of action on the one hand and le gal proceed-
ings on the other. The result of this distinction is that it is not the legal proceedings
that will be terminated by res judicata, but the individual causes of action that have
been decided. The High Court appears to have found that the proceed ings were res
judicata on the basis that the legal proceedings have a similar outcome. This is clear-
ly wrong. The applicant relied on different causes of action and on the strength of
that, the matter could not have been res judicata.”
19. The applicants’ causes of action in the two rounds of litigation were clearly the
same, and entailed the same subject-matter. Counsel for the applicant argued
that the previous application had been brought on different facts, but the only
difference was, essentially, that it was the illness of another relative (not the
first applicant ’s father) that necessitated the applicants ’ p roposed exit from
and re-entry into South Africa. The fact that the grant of the relief might be
approached differently does not alter the pos ition. In any event, the ambit of
the exceptio res iudicata has been extended by the rel axation, in appropriate
the exceptio res iudicata has been extended by the rel axation, in appropriate
cases, of the common law requirement that the relief claimed or the cause of
action be the same. This means that the “same issue” question is whether an
SA 327 (CC) paras 69-71. My emphasis.
issue of fact or law was an essential element of the previous judgment 17 As
stated in Ascendis:18
“[111] … The doctrine of res judicata has ancient roots as an implement of justice. It
seeks to protect litigants and the courts from never ending cy cles of litigation. Its
strict terms applied when a later dispute involves the same party, seeking the same
relief, relying on the same cause of action.
[112] But the doctrine’s roots lay in good sense and fairness. This demanded wid-
er application, that barred repeat cycles of litigation on less stringent exaction of the
“same cause of action” requirement. And that happened. ….
[113] And so it has become well accepted that enforcing the requirements
of res judicata should yield to the facts in each case. Thus, the doctrine was enforced
when a plaintiff demanded the same thing on the same ground, or (which is the
same) on the same cause for relief, or further, where the same issue had been sub-
jected to final previous judicial determination And the b readth of what is required
when repeat litigation is barred is still being developed. …”
20. The defence nevertheless remains that of res iudicata.19 Given the particular
facts of thi s matter, I regarded the applicants’ application for interim relief as
having been precluded by the doctrine of res iudicata.
The requirements for the grant of an interim interdict
21. If I was wrong in relation to the issue of res iudicata, I was nevertheless of the
view that the applicant had not made out a proper case for an inte rdict. The
requirements for the grant of an interim interdict are the following:20
21.1 A prima facie right – this need not be shown on a balance of probabili-
16 Ascendis supra para 66 (my emphasis).
17 Ascendis supra para 97 (first judgment).
18 Ascendis supra paras 111-113 (second judgment).
19 Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA) para 10.
20 See Prest Interlocutory Interdicts (1993) at 54-86.
ties, but is sufficiently proved if prima facie established though open to
some doubt. The stronger t he right is, the less need there is for the
balance of convenience to be considered.
21.2 A well-grounded apprehension of irreparable harm if the interim relief is
not granted and the ultimate relief is eventually granted – this is a harm
that a reasonable per son might entertain on being faced with certain
facts, and is an objective test.
21.3 A balance of convenience favouring the grant of the interim relief – the
court must weigh the prejudice the applicant will suffer if the interim in-
terdict is not granted against the prejudice to the respondent if it is.
21.4 The absence of any other satisfactory remedy in the circumstances.
22. The proper approach in determining whether to grant an interim interdict is to
take the facts set out by the applicant s, together with any fa cts set out by the
respondents which the applicant s cannot dispute, and to consider whether,
having regard to the inherent probabilities, the applicant s should on those
facts obtain final relief at the trial (or application for final relief).21
23. All of th ese requirements must be met by an applicant seeking an interim
·interdict, and even if they are all met, the court still has the discretion to re-
fuse to grant the interdic t sought. By contrast, if an applicant fails to satisfy all
four requirements mentioned above, the Court has no discretion to grant an in-
terdict.
Did the applicants have a prima facie right?
21 Gool v Minister of Justice 1955 (2) SA 682 (C) at 688D-E.
24. In the present matter, th e applicants allege d that they used to have a right to
be in South Africa permanently and to enter and exi t the country fr eely based
upon the first applicant's permanent residency status, as well as the valid vi-
sas held by the s econd, third and fourth applicants allowing them to do so .
The respondents subsequently, in about 2019, revoked this right on the basis
that the documentation in question had been fraudulently obtained, and de-
clared them "prohibited persons" . It is that prima facie right which the appli-
cants seek to protect while the validity of the decision is being considered in
the appeal and review process. The revocation of such permit and visas directly
infringed such right.
25. The applicant argued that the manner in which such revocation was decided
and acted upon was unlawful and invalid. This was , among st other factors,
because in revoking the decision the respo ndents relied on an affidavit de-
posed to und er section 212(3) of the Criminal Procedure Act 51 of 1977 (the
CPA). reads as follows:
"(3) Whenever in criminal proceedings the question arises whether any matter has
been registered under any law or whether any fact or transaction has been recorded
thereunder or whether anything connected therewith has been done thereunder, a
document purporting to be an affidavit made by a person who in that affidavit alleges
that he is the person upon whom the law in question confers the power or imposes the
duty to register such matter or to record such fact or transaction or to do such thing
connected therewith and that he has registered the matter in question or that he has
recorded the fact or transaction in question or that he has done the thing connected
therewith or that he has satisfied himself that the matter in question was registered or
that the fact or transaction in question was recorded or that the thing connected
therewith was done, shall, upon its mere product ion at such proceedings, be prima
therewith was done, shall, upon its mere product ion at such proceedings, be prima
facie proof that such matter was registered or, as the case may be, that such fact or
transaction was recorded or that the thing connected therewith was done."
26. No criminal proceedings had been instituted against the applicants, and they
contend, therefore, that the respondents could not place reliance upon the
section 212(3) affidavit. The affidavit indicated that the respondents’ decision
was reached based upon there not being an internal record of the applicants’
VAS numbers in the respondents' systems. It was thus unclear how the appli-
cants had c ome to be granted permission to remain in the country from the
outset, and the respondents were of the view that the applicants had not given
a satisfactory explanation as to how their documents had been obtained. The
applicants contended that they could not be blamed for the respondents’ inter-
nal VAS numbers not corresponding with the entries on their internal systems ,
and the possibility exists that there was fraud within the respondents’ depart-
ment or its affiliated services themselves.
27. The applicants argued that similar reasoning was followed in the matter of AK
and others v Minister of Home Affairs and another.22 The facts of that case
were, however, different. The firs t applicant , a Russian citizen, had been
found in possession of a fraudulent work visa, and declared an illegal foreign-
er, and was or dered to leave the c ountry. Her children ha d been born in
South Africa, and they, as well as her husband, were South Afric an citizens.
The practical effect of the Minister’s decision was that the first applicant would
either have had to leave her minor children behind in South Africa or depart
with them to Russia which was in a state of war with Ukraine . She accordingly
instituted an application for the judicial review under PAJA of the Minister ’s
decision. The court granted the review application on the basis that the first
applicant’s version as to how she came to be in possession of the visa was ef-
fectively unopposed. The court emphasised that the “effect of the order will
merely be to uplift the declaration of prohibition to enable the first applicant to
apply for a permanent residence visa. Nothing more .”23 It was not concerned
apply for a permanent residence visa. Nothing more .”23 It was not concerned
with the question as to whether the first a pplicant should be allowed freely to
exit and re-enter the country in the absence of the appropriate documentation.
22 2023 (3) SA 538 (WCC).
28. It is necessary to start at the basic premise. The Constitution of the Republic
of South Africa, 1996, in particular the Bill of Rights, affords South African citi-
zens certain rights which are specifically reserved for them, while other “uni-
versal” rights are extended to all persons residing in the country, including
non-citizens. In the present matter the applicants, who are currently “illegal
foreigners”, sought to rely on the right to enter and leave the Republic.
29. Section 21 of the Constitution sets out the right to freedom of movement and
residence:
“(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the
Republic.
(4) Every citizen has the right to a passport.”24
30. The change in wording between sections 21(2) and 21(3) is telling. The Con-
stitution is, on an ordinary reading, clear on the right to leave and enter the
Republic. T he right to enter is limited to citizens . It was common cause that
the applicants were not South African citizens. They accordingly fell outside of
the ambit of section 21(3) of the Constitution. The respondents have never at-
tempted to prevent the applicants from leaving the country – it was their re-
entry that was the bone of contention.
31. The preamble to the IA, in turn, states the following in relation to the entry of
non-citizens into the Republic:
“In providing for the regulation of admission of foreigners to , their residence in, and
23 AK v Minister of Home Affairs supra para 54.
24 My emphasis.
their departure from the Republic and for matters connected therewith, the Immigra-
tion Act aims at setting in place a new system of immigration c ontrol which ensures
that –…(f) the entry and departure of all persons at ports of entry are efficiently facili-
tated, administered and managed…”25
32. The IA thus proceeds from the basic premise of section 21(3) of the Cons titu-
tion, namely that only citizens have a right to enter the Republic. Non-citizens
are required to seek permission from the respondents to enter the country if
they meet the lawful requirements. Section 9 of the IA (“Admission and depar-
ture”) provides as follows:
“(1) Subject to this Act, no person shall enter or depart from the Republic at a
place other than a port of entry.
(2) Subject to this Act, a citizen shall be admitted, provided that he or she identi-
fies himself or herself as such and the immigration officer records his or her
entrance.
(3) No person shall enter or depart from the Republic-
(a) unless he or she is in possession of a valid passport, and in the case
of a minor, has his or her own valid passport;
(b) except at a port of entry, unless exempted in the prescribed manner by
the Minister, which exemption may be withdrawn by the Minister;
(c) unless the entry or departure is recorded by an immigration officer in
the prescribed manner; and
(d) unless his or her relevant admission documents have been examined
in the prescribed manner and he or she has been interviewed in the
prescribed manner by an immigration officer: Provided that, in the case
of a child, such examination and interview shall be conducted in the
presence of the parent or relative or, if the minor is not accomp anied
by the parent or relative, any person of the same gender as the minor.
(4) A foreigner who is not the holder of a permanent residence permit contem-
plated in section 25 may only enter the Republic as contemplated in this sec-
25 My emphasis.
tion if-
(a) his or her passport is valid for a prescribed period; and
(b) issued with a valid visa, as set out in this Act.”
33. In relation to the issue of possible fraud in the issue of the ap plicants’ docu-
mentation, the respondents pointed out that the applicants had never been
able to pro vide a receipt from the relevant agency for the submission of their
visa applications. It therefore d id not matter whether the applicants were in
fact the victims of fraud – there was no proof of the fact that they had duly
submitted the required application. The fact that the respondents had been
alerted to this fact by way of a section 212(3) affidavit t ook the matter no fur-
ther.
34. There was, in addition, a problem with the internal appeal that the applicants
said they had lodged with the respondents, and the outco me of which the ap-
plicants were awaiting. The respondents were not in receipt thereof – it did
not be ar an acknowledgement of receipt by the department, but a Wester n
Cape High Court stamp i nstead. Whether there was thus a valid app eal pro-
cess pending was questionable.
35. The long and the short of the matter was that the applicants, as non -citizens,
no longer had a right to enter South Africa upon revocation of their visas, and
they could not show a prima facie right in this respect. This aspect was crucial
to the relief that the y sought. The fact that the issue of their documentation in
the first place might have come about as a result of fraud, whether from the
respondents’ department or elsewhere, did not convert their unfortunate situa-
tion into an entitlement.
36. The applicants placed much emphasis in their founding papers on their right to
lawful, reasonable, and procedurally fair administrative action under section 33
of the Constitution. An applicant may, however, not rely on a professed right to
review the impugned decisions based on section 33 of the Constitution . The
prima facie right that must be established for an interim interdict is not simply
an applicant's right to approach the court for a review:26
"… the prima facie right a claimant must establish is not merely the right to approach
a court in order to. review an administrative decision. It is a right to which, if not pro-
tected by an interdict, irreparable harm would ensue. An interdict is meant to prevent
future conduct and not decisions already made. Quite apart from the right to review
and to set aside impugned decisions, the applicants should have demonstrated a
prima facie right that is threatened by an impending· or imminent irreparable harm.
The right to review the impugned decisions did not require any preservation pendente
lite."
37. The applicants approached the prima facie right enquiry essentially by focus-
ing on the grounds on which they suggested that they had good prospects of
success in the review application. T his was not the correct approach for de-
termination of the first requirement underpinning the grant of an interim inter-
dict. The question was not whether the applicants had established the exist-
ence of a prima facie right on the basis of their alleged prospects of success in
the appeal or a notional review application instituted if their appeal failed (alt-
hough such prospects fell to be considered given the impact of the interdict
sought),27 but rather whether the applicants had demonstrated that they had a
prima facie right which was threatened by imminent irreparable harm. This the
applicants did not show.
38. I have alluded to the fact that the applicants sought an interim interdict against
the exercise of the respondents’ statutory powers under the IA and the regula-
26 National Treasury supra para 50.
27 See, for example, Economic Freedom Fighters v Gordhan supra para 54: “…The interim inter-
dict test, which has been developed through case law – culminating in the OUTA test – is
dict test, which has been developed through case law – culminating in the OUTA test – is
sound and has su fficient safeguards to ensure that the Public Protector is not denuded of her
powers when an interim order is granted against her. In light of OUTA, it is evident that the in-
terim interdict test must be informed by the normative scheme and democratic prin ciples but-
tressed by the Constitution. This test is broad and supple enough to take into account the
tions thereto. In this respect, an “interim interdict restraining the exercise of
statutory powers is not an ordinary interdict, and courts will grant it only in ex-
ceptional cases and when a strong case for that relief has been made out.”28
Of course, an organ of State is only entitled to act to the extent it is empow-
ered by the Constitution, the law and government policy. The constitutional
principle of legality requires organs of state to act lawfully and within the
boundaries of the Constitution.29 Where an organ of state acts beyond its con-
stitutional and statutory authority, it is the function of the court to prevent such
action. Under such circumstances, judi cial intervention is consistent with the
doctrine of separation of powers. This was, however, not the case in the pre-
sent matter.
39. The applicants were required to set out , at least, facts which established that
they were prima facie entitled as foreigners to enter the Republic. There is no
such right established on the papers. In these cir cumstances, this Court ha d
no discretion to grant the interdict sought.30
40. I deal briefly with the other requirements for the grant of interim interdictory re-
lief.
A reasonable apprehension of irreparable harm
41. An applicant seeking an interim interdict mus t show that, without the interdict
being granted, it can reasonably expect to be prejudiced irreparably.
42. In V&A Waterfront Properties (Pty) Ltd and another v Helicopter and Marine
constitutional role and function s of the Public Protector and to ensure that she is not inadvert-
ently stripped of her powers.”
28 Marcé Projects (Pty) Ltd and another v City of Johannesburg Metropolitan Municipality and
another [2020] 2 All SA 157 (GJ) para 68.
29 Member of the Executive Council, Department of Education, Eastern Cape Province and an-
other v Eduplanet (Pty) Ltd [2017] ZAECGHC 9 para 18.
Services (Pty) Ltd and others31 the court held that the term “injury” should be
understood to mean “infringement of the right which has been established and
resultant prejudice”.
43. The applicants, having failed to establish the right which they allege d was be-
ing infringed, could not meet this second criterium for the grant of interim relief,
because they could not allege that they would suffer any harm should they be
refused entry into the country . It was therefore no wo nder that their founding
affidavit was glaringly bare in this respect , whether in relation to the first and
second applicants or their children. On the contrary, the applicants stated that
reuniting with family in Sweden was essential for their children ’s well -being.
As indicated, the respondents had no objection to the applicants leaving the
country, and thus reuniting with family in Sweden.
The balance of convenience
44. If I was wrong in the determination of the first two requirements (in particular,
the view that the applicant failed to demonstrate the existence of a prima facie
right), then I considered that an interim interdict should not be granted be-
cause the balance of convenience did not favour the applicants.
45. This requirement is to some extent linked with the prima facie right, and high-
lights the discretion a court has in the grant of interim relief:32
"In every case of an application for an interdict pendente lite the court has a discre-
tion whether or not to grant the application. It exercises this discretion upon consider-
ation of all the circumstances and particularly upon a consideration of the probabilities
30 Plettenberg Bay Entertainment (Pty) Ltd v Minister van Wet en Orde 1993 (2) SA 396 (C) at
401C-D.
31 [2004] 2 All SA 664 (C) para 18. A subsequent appeal to the Supreme Court of Appeal was
successful, but this definition was not disturbed. Leave to appeal to the Cons titutional Court
was refused.
was refused.
32 Prest The Law and Practice of Interdicts (1996) at 79. My emphasis.
of success of the applicant in the action. It considers the nature of the injury which the
respondent, on the one hand, will suffer if the application is granted and he should ul-
timately tum out to be right,' and that which the applicant, on the othe r hand, might
sustain if the application is refused and he should ultimately tum out to be right. For
though there may be no balan ce of probability that the applicant will succeed in the
action, it may be proper to grant an interdict where the balance of c onvenience is
strongly in favour of doing so, just as it may be proper to refuse the application where
the probabilities favour the applicant if the balance of convenience is against the
grant of interim relief. The exercise of the court's discretion usual ly resolves itself into
a nice consideration of the prospects of success and the balance of convenience -
the stronger the prospec ts of success, the less the need for such balance to favour
the applicant; the weaker the prospects of success, the greater th e need for the bal-
ance of convenience to favour him."
46. I have already found that the applicants did not prove a prima facie right.
There were, however, further difficulties in the applicants’ argument that the
harm that they would suffer should the relief not be granted would outweigh
the harm the respondents would suffer in the event of it being granted . The
exercise of the court’s discretion usually requires a consideration of the pro-
spects of success in the application for final relief, and the balance of conven-
ience: The stronger the prospects of success, the less the need for such bal-
ance to favour the applicant; the weaker the prospects of success the greater
the need for it to favour him. There was, however, no longer a pending review
application before the High Court , and the applicants were still awaiting an
outcome from the second respondent on their alleged internal appeal.
outcome from the second respondent on their alleged internal appeal.
47. The respondents were not preventing the applicants from leaving the country.
This dispute originate d from 2019 , and as s uch the applicants had years to
regularise their presence in the South Af rica. Their failure to do so should not
prejudice the integrity and sovereignty of the Republic’s borders and ports of
entry. As indicated earlier, a final order sought in similar terms had been dis-
missed earlier in 2025, and the applicants did not indicate in their papers in
the present matter that they had suffered harm as a result.
No other satisfactory remedy
48. It was, given my conclusions on the first three requirements for the grant of in-
terim relief, not necessary to consider whether another satisfactory remedy ex-
isted.
Costs
49. There was no reason why costs should not follow the event. In the exercise of
my discretion under Rule 67A of the Uniform Rules of Court , I was of the view
that counsel’s fees should be taxed on Scale B.
Conclusion
50. In the circumstances , I did not consider that the applicant s had satisfied the
requirements for the grant of the interim interdictory relief sought in circum-
stances where the “clearest of ca ses”33 was required. I was also of the view
that the applicants were in any event precluded, on the basis of the doctrine of
res iudicata, from seeking the relief set out in the notice of motion. I accord-
ingly granted the order set out at the beginning of these reasons.
___________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicants: Mr D. Rabie
Instructed by: A. S. Madikizela Attorneys
For the respondents: Mr T. Mayosi
Instructed by: The State Attorney
33 See Economic Freedom Fighters v Gordhan supra paras 40 and 48.