THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 160/04
In the matter between :
NICHOLAS CARL STEWART LITTLEWOOD First Appellant
HEATHER LITTLEWOOD Second Appellant
EMMA LOUISE LITTLEWOOD Thir d Appellant
NICHOLA KATE LITTLEWOOD Fourth Appellant
and
MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR-GENERAL OF THE DEPARTMENT
OF HOME AFFAIRS Second Respondent
________________________________________________________________________
Before: HOWIE P, NAVSA, MTHIYANE, NUGENT & PONNAN JJA
Heard: 11 MARCH 2005
Delivered: 22 MARCH 2005
Summary: Review – ap plication to Mi nister of Home Affairs for exemption
from s 23 of the Aliens Control Act 96 of 1991 – failure to consider
whether ‘special circumstances’ existed – decision set aside.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
NUGENT JA
2
NUGENT JA:
[1] The Littlewood family – Nicholas Littlewood (I will refer to him as
Littlewood), his wife Heather, and th eir two minor daughters – are British
citizens who are living in this country. Littlewood alleges th at when he took
steps to renew his passport (which seems to have been towards the end of the
year 2000) he discovered, for the first time, that the permanent residence permits
that had been endorsed in the passports of him and his wife – ostensibly by the
Department of Home Affair s – were not authentic. W ithout valid permits their
presence in South Africa was prohibited by s 23 of the Aliens Control Act 96 of
19911 and they were liable to be deported. At the time the discovery was made
the Littlewoods had been in South Africa for more than two years. They had
severed their ties in Britain, they had established a home, Littlewood had
established a small business, and the children were settled at school.
[2] The family was caught in a dilemma . At that time the authorities would
generally not entertain applications fo r permanent residenc e unless they were
made while the applicant was in his or her country of origin. Thus the
Littlewoods were not able to regularise their position unless they first uprooted
their settled existence and returned to Britain .
[3] However, s 28(2) of th e Act authorised the Minister of Home Affairs to
exempt any person from the provisions of s 23 – whether for a specified or an
unspecified period, and on such conditions as he or she might impose – if the
1 The Act was superceded by the Immigration Act 13 of 2002 on 12 March 2003 but nothing turns on this.
3
Minister was satisfied that there were ‘special circumstances’ which justif[ied]
his or her decision’.2
[4] In an attempt to reso lve their dilemma the Littlewoods applied for such an
exemption in about the middle of 2001 . The terms in which the exemption was
sought do not appear expressly from the application but it was accepted by all
the parties before us that it was limit ed to a temporary exemption from the
provisions of s 23 while an application was made for the right to permanent
residence.
[5] Acting on the advice of officials in his department the Minister refused
the application. The Littlewoods were advised of the decision, and given the
reasons for it, in a letter from the Minist er dated 26 October 2001. Aggrieved at
the Minister’s refusal the Littlewoods applied to the High Court at Pretoria for
his decision to be set aside. That appli cation, which came before Maluleke J,
was also unsuccessful, and they now appeal with the leave of this court.
[6] In support of their application to the Minister the Littlewoods advanced
the following explanation for their presence in South Africa.
[7] The Littlewoods have relatives in this country whom they were
accustomed to visit from time to time. The last visit that they made from Britain
extended from 18 October 1 997 (when they arrived) until the evening of 9
January 1998 (when they departed).
2 The provision to that effect in s 28(2) was inserted by s 15 of Act 76 of 1995.
4
[8] At that time Littlewood had been working for about fifteen years in a
specialised field of concrete paving. Bef ore that he had qualified and worked as
an electrician on the English coalfields. His brother-in-law owned a construction
business in Pretoria and Littlewood was invited to join the business. By the time
the visit came to an end he had deci ded to accept. Before his departure
Littlewood completed an application to the South African authorities for a
temporary residence permit for twelve months and fo r a work permit, and once
he was in London he delivered it to the High Commission.
[9] Early in May 1998 Littlewood was advised by the High Commission that
the application had been turned down. At about the same time, according to
Littlewood, he was approached to jo in a French paving firm (Ellis Beton
Décoratife) that was operating in South A frica. He told the firm that he had
been refused a work permit but he was told that the firm would arrange for the
necessary permits to be issued to him a nd his family after th eir arrival in this
country.
[10] On the strength of that assurance, said Littlewood, he entered South
Africa on 26 July 1998 on a business visa that was valid for three months, to
take up the position with the French firm. He was followed a month or so later
by his family who entered the country on visitors’ visas valid for three months.
[11] The Littlewoods allege that soon af ter their arrival their passports were
handed to Mr Robin le Fevre, the local representative of the French firm, who
was to arrange for the issue of permanen t residence permits. The passports were
5
later returned, endorsed with permanent residence permits that purported to have
been issued by the Department of Home Affairs.
[12] In about September 1999 Ellis Beton Décoratife terminated its South
African operations, Le Ferve left the country (his present whereabouts are
unknown) and Littlewood comme nced business on his own account. It was
thereafter, when arranging to renew hi s passport, that L ittlewood discovered
that their permits were not authentic.
[13] The Littlewoods’ application to th e Minister for a temporary exemption
from the provisions of s 23 was accompan ied by a supporting memorandum that
incorporated, amongst other things, the above account of how the family came
to be in South Africa, but the memorandum contained an error. It was said in the
memorandum that Littlewood arrived to take up the position with the French
firm in about June 1997, when in truth he arrived on 26 July 1998. (His arrival
on that date is confirmed by the record s that are kept by the Department of
Home Affairs.) The significance of that error appears later in this judgment.
[14] The reasons for the Minister’s deci sion are recorded in the letter that I
have referred to, which wa s drafted by departmental officials, and accepted by
him. (That is not unusual government prac tice.) It was noted in the letter that
Littlewood had not mentione d in his supporting me morandum that he had
applied for, and been refused, a work permit on an earlier occasion (the occasion
referred to in paragraph 9), and that Littlewood had worked for Ellis Beton
Décorotife and commenced his own busine ss without a valid permit, and it was
6
pointed out that possession of a fraudulent permit was a serious offence and that
it was the responsibility of a visitor to this country to adhere to the law. The
letter then continued as follows:
‘The Department of Home Affairs also cannot be held responsible for actions between private
individuals, which has now resulted in the predicament in which your client finds himself.’
The Minister went on to say that he
‘…unfortunately must insist that Mr Littlewood and his family make arrangements to leave
South Africa within twenty-eight (28) days from receipt of this letter and lodge the prescribed
work permit application at the South African High Commission in London. The said office
will be requested to treat the application with discernment a nd once received, it will be
expedited, the outcome of which must please not be anticipated.’
[15] The court a quo was of the view that the Littlewoods’ exemption
application was ‘dealt with in a ma nner that was lawful, reasonable and
procedurally fair’ and that the Minister had refused the application ‘on a
consideration of all the informati on furnished by [Littlewood] and the
information in the records of the department.’ In my view the reasons advanced
by the Minister in his letter show the contrary.
[16] There are two features of the reasons that were proffered by the Minister
that are material for present purposes. Fi rst, there is no suggestion in his letter
that the Littlewoods’ explanation for th eir presence in South Africa was false
and that their application was turn ed down on those grounds. (A false
explanation might, by itself, have justifie d a refusal, but the veracity of the
explanation is not material to this app eal.) Secondly, it is apparent from the
7
passage from the letter that I have quoted that the explanation was not weighed
at all before the application was turned down. The application was turned down
for no reason but that the Department of Home Affairs saw the possession of a
fraudulent permit as a serious offence that had caused a predicament for which it
was not responsible. But that begs the question whether the circumstances that
had arisen – albeit that it was not attr ibutable to fault on the part of the
department – constituted ‘special circum stances’ justifying the granting of an
exemption. It is apparent from the reasons advanced in the letter that the
Minister – on the advice of his official s – failed to apply his mind to that
question at all. (The departmental memorandum that accompanied the
recommendation to the Minister, and the affi davits that have been filed in these
proceedings, take the matter no further.)
[17] The Minister was not called upon to decide whether his department was at
fault but rather whether ‘special considerations’ existed justifying an exemption.
The effect of his failure to apply his mind to that question was that he failed
altogether to exercise the discreti on conferred upon him by the Act and his
decision must be set aside.
[18] It is well established that only exceptionally will a court substitute its own
decision for that of an official to whom the decision has been entrusted. 3 I t
cannot be said in the present case th at the proper decision is a foregone
3 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T) 75H-76H; per Van Heerden JA in
Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban 1986 (2) SA 663 (AD) 680E-
H; Premier, Mpumalanga v Executive Co mmittee, Association of State-ai ded Schools, Ea stern Transvaal 1999
(2) SA 91 (CC) paras 50 and 51.
8
conclusion, nor that the Minister has disabled himself from properly making it,
nor are there any other grounds for substit uting our decision for his. The proper
course is to remit the matter for re-consideration by the Minister.
[19] There is one further ma tter that is relevant to th e costs. In the answering
affidavits that were filed in this matter an official in the Department of Home
Affairs – Mr Vorster – launched a s tinging attack upon the honesty of the
Littlewoods, alleging that they were party to fraudulently securing the invalid
permits. That prompted a robust response from the Littlewoods for which they
were rebuked by the court a quo.
[20] Vorster’s attack wa s founded solely on the statement in the supporting
memorandum that Littlewood entered Sout h Africa to take up a position with
Ellis Beton Décoratife in about June 1997 . Vorster reasoned that if Littlewood
entered the country in J une 1997, and soon thereafter the inauthentic passport
endorsements were made, then the fact th at he then lodged an application for
temporary residence with the High Comm ission (in early 1998) showed that he
must have been aware that the endorsements were invalid.
[21] That reasoning is impeccable but the premise is unsound. In truth
Littlewood did not arrive in June 1997 but in July 1998 and he drew attention to
the error in a supplementary affidavit th at was filed before Vorster deposed to
his affidavit. Moreover, wh en Vorster deposed to his affidavit, a printout from
the department’s own records, confirming the correct date, was already part of
9
the record. Why Vorster, in those circumstances, overlooked the true facts is left
unexplained.
[22] No doubt a litigant – even one who has been provoked – ought always to
conduct litigation with decorum. But so , too, ought a public official exhibit
courtesy and restraint in his official dealings – even with a person whom he
disbelieves – and refrain from alleging fraud without c onsiderable reflection.
The appellants have aske d for a special costs order on account of Vorster’s ill-
considered attack but I do not think we should grant such an order. The
appellants have been reco mpensed by replying to Vors ter in kind, which was
itself inappropriate, and there matters should be left to lie.
[23] The appeal is upheld with costs. The order of the court a quo is set aside
and the following order is substituted:
‘The Minister’s decision is set aside. The application for an exemption,
supplemented by such information as may be required for a proper
consideration of the application, is remitted to the Minister for re-
consideration. The costs of the a pplication are to be paid by the
respondents.’
___________________
R W NUGENT
JUDGE OF APPEAL
HOWIE P )
NAVSA JA )
MTHIYANE JA ) CONCUR
PONNAN JA )