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[2009] ZACC 23
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Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23; 2009 (12) BCLR 1192 (CC) ; 2010 (4) SA 327 (CC) (25 August 2009)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 53/08
[2009] ZACC 23
WYCLIFFE SIMIYU KOYABE
First Applicant
MARY KADENYI KOYABE
Second Applicant
ANTHONY SIMIYU KOYABE
Third Applicant
versus
MINISTER FOR HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL OF
HOME AFFAIRS
Second Respondent
DEPARTMENT OF HOME
AFFAIRS
Third Respondent
with
LAWYERS FOR HUMAN
RIGHTS
Amicus Curiae
Heard on : 3 March 2009
Decided on : 25 August
2009
JUDGMENT
MOKGORO J:
This case arises
from the withdrawal of residence permits that had been granted to
non-South Africans. It raises questions
about the right to just
administrative action, more particularly about the circumstances in
which internal remedies must be
exhausted before applications for
judicial review can be made. In this matter, the applicants seek
leave to appeal against
the judgment of the North Gauteng High
Court, Pretoria (the High Court)
1
dismissing their request for the review and setting aside of the
decision by the Director-General of Home Affairs (the second

respondent) to withdraw or terminate their residence permits. The
applicants also seek an order that the costs of their application

in this Court be costs in the appeal.
The parties
The first applicant is Mr Wycliffe Simiyu Koyabe, a
Kenyan businessman. The second applicant is Ms Mary Kadenyi
Koyabe, the
first applicant’s wife who is also Kenyan. The first
and second applicants currently reside in South Africa with their
adult
son, Mr Anthony Simiyu Koyabe, the third applicant in this
matter and their three other minor children.
The Minister for
Home Affairs (the Minister) is the first respondent. The second
respondent is the Director-General of Home
Affairs
(Director-General); and the third respondent, the Department of
Home Affairs (the Department).
Lawyers for Human
Rights (the amicus curiae), a non-governmental organisation whose
objective is the promotion and enforcement
of human rights in South
Africa, applied and were admitted as amicus curiae.
Background
The facts of this case are highly contested by the
parties. The first applicant first came to South Africa in 1994
and obtained
a work permit during his stay. In 1995 he married Ms
Lindiwe Ngobese, a South African citizen. They divorced in 1996.
After
the divorce he applied to convert his work permit to an
“own-business work permit”. This application was refused after

Ms Ngobese revealed to the Department that her marriage to the
first applicant had been one of convenience.
While the first
applicant’s appeal against that decision was pending, Mrs Willis,
an “immigration agent”, informed him
that he would qualify for
permanent residence on the basis of an exemption under the
legislation then in operation, the Aliens
Control Act.
2
On 13 June 1997 the first applicant was granted the exemption and
permanent residence, both of which were extended to the
second
applicant.
In 2001, Mrs Willis
further advised the first and second applicants that they would
qualify for South African citizenship.
Both applicants
successfully applied for naturalisation and within the year, were
issued with temporary identity certificates.
However, on 11
October 2001 the applicants were arrested for being “illegal
aliens” on the basis of irregularities discovered
regarding their
1997 exemptions. They were later released, pending the outcome of
criminal charges due to be laid against
them. It is common cause
that their naturalisation was fraudulently obtained. The first
applicant attributes the fraud to
an official in the Department of
Home Affairs.
The first applicant
was again arrested for fraud in connection with the 1997
exemptions. After investigations, no prosecution
was initiated due
to insufficient evidence.
The applicants left
South Africa between June and August 2002, doing so, they state, on
the basis of assurances from an official
within the Department that
they could make a fresh start on their return, should they apply to
re-enter and stay in South Africa.
The respondents’ version is
that the applicants were compelled to leave.
In November 2002 the
first applicant applied for and was granted permission to return to
South Africa, which he did in January
2003. Once in the country,
he applied for a work permit, which was granted. He then converted
his work permit to a business
permit, thus enabling him to be
self-employed. Although the applicant claims he made full
disclosure of complications regarding
his previous immigration
status to the Department, the respondents dispute that the
disclosure was complete.
On 12 July 2005 the
first applicant applied for permanent residence status for himself
and his family in terms of section 27(c)
of the Immigration Act
3
(the Act). Once the applicants had provided the Department, at its
request, with an explanation regarding their previous immigration

status, they were granted permanent residence permits in June 2006
and the first applicant applied for “green identity documents”,

issued to permanent residents and citizens. It was when he
questioned the delay in the issuing of these documents that he
was
told that his application had been referred to Ms Sandra Franke, an
official in the Department’s investigation section.
As part of the
investigation process, the first and second applicants met with Ms
Franke. On the second occasion she gave each
of them a letter
dated 9 January 2007. These letters informed them, among other
things, that an investigation had revealed
that they had previously
obtained South African identity documents by fraudulent means and
therefore did not qualify for permanent
residence after 1 July
2005; in terms of section 29(1)(f) of the Act,
4
the first and second applicants were prohibited persons and did not
qualify for visas, admission to South Africa and temporary
or
permanent residence permits; they were to be deported and they were
entitled, under section 8 of the Act,
5
to request the Minister to review the decision to deport them.
Mr Koyabe’s
attorney accordingly advised him to submit a written request for a
review of that decision under section 8(1)
of the Act.
6
However, he further advised that in order to submit a meaningful
request for review, it would be necessary to ascertain the
reasons
for the decision. Mr Koyabe’s attorney wrote to the Minister,
requesting the reasons for the decision to withdraw
or terminate
their residence permits for purposes of the review application, to
which they were entitled in terms of section
5
7
of the Promotion of Administrative Justice Act
8
(PAJA).
Between 11 January
and 6 February 2007 there was a flurry of correspondence between
the applicants’ attorneys and the Department.
Several letters by
the applicants followed, requesting reasons for the decision to
withdraw their residence permits.
Ms Franke wrote to
the applicants’ attorneys on 7 February 2007 stating that the
reasons for the decision were set out adequately
in the letters of
9 January 2007. Taking this into consideration, it is clear that
from 7 February 2007, the applicants had
had three days to submit a
request for review having been provided with all the required
information. The applicants failed
to do so and, therefore, Ms
Franke argued, the applicants’ right to a review by the Minister
had lapsed.
The applicants
applied to the High Court for a review and the setting aside of the
Director-General’s decision to withdraw
their permanent residence
permits and status. They also sought interim relief, pending the
finalisation of the main relief
sought.
In the High Court
The respondents relied on the provisions of section
7(2)(a) of PAJA,
9
read together with section 8 of the Act, which provides procedures
for reviews and appeals.
10
It was common cause
that the applicants had failed to make use of the review procedure
set out in section 8(1) of the Act, “mainly
or purportedly” for
the reasons stated in the correspondence between them and Ms
Franke. The High Court held that, based
on Mr Koyabe’s own
allegations, all relevant facts were known to them and that the
respondents’ letter of 9 January 2007
“contained no mystery at
all”. The court furthermore found that the applicants and/or
their attorneys were overly formalistic
in insisting that the
second and third respondents prove every allegation beyond a
reasonable doubt before they were prepared
to take the necessary
steps towards a review.
The High Court held
that the applicants had not exhausted their internal remedies as
required by section 7(2)(
a
) of PAJA and concluded that there
were no exceptional circumstances that would allow it to exempt the
applicants from the obligation
to exhaust internal remedies.
11
The court accordingly held that the applicants should first
exhaust their internal remedy under section 8 of the Act as

required by section 7(2)(
b
) of PAJA,
12
and dismissed their application with costs.
The applicants
sought and were denied leave to appeal in both the High Court and
the Supreme Court of Appeal.
In this Court
The applicants submit that their application for leave
to appeal raises questions regarding the ambit of the right to just
administrative
action, protected under section 33(2) of the
Constitution,
13
and given effect to in section 5 of PAJA.
14
They claim that it further raises questions about the
interpretation of section 7(2) of PAJA, in the light of the right

of access to courts guaranteed in section 34 of the Constitution.
15
They argue that the High Court failed to consider important
factors necessary for a constitutional interpretation of section

7(2) of PAJA. Specifically, they submit that they had intended to
exhaust their internal remedy as required by section 7(2),
but the
respondents’ refusal to provide reasons for withdrawing the
residence permits precluded the applicants from meaningfully

challenging that decision through internal review. Having been
informed that the time period to apply for a ministerial review
had
expired, the internal remedy, they submit, was no longer available
to them to proceed as they had intended. Accordingly,
they argue,
to permit the respondents to rely on section 7(2) to non-suit them
would be contrary to the spirit of the Constitution.
A remedy, the
applicants argue, is exhausted not only when an applicant actually
exercises the right to do so. Instead, they
urge the Court to
accept that exhaustion may also occur when “the time for
exercising it has lapsed and the repository of
the power to review
refuses to entertain the review because the time has lapsed.”
They urge this Court to reject a holding
that a person who did not
exercise the right to an internal remedy may invariably not
institute judicial review. This, they
submit, would result in an
unconstitutional ouster of a court’s jurisdiction, contrary to
section 34 of the Constitution.
It is their further
contention that even before a ministerial review, they had a
constitutional right to be furnished with reasons
for the
administrator’s decision as well as any further information they
needed. Although the respondents relied on section
8(1),
16
their decisions were also based on other provisions of the Act,
notably section 8(3),
17
obliging them to provide the applicants with reasons.
In the alternative,
the applicants submit that they are entitled to reasons under
section 5 of PAJA.
18
They argue that a finding that a person is an illegal foreigner is
an adverse decision constituting administrative action
as defined
in section 1 of PAJA.
19
Accordingly, they submit, they were entitled to reasons under
section 5 of PAJA, as none of the exceptions created by sections

5(4) and 5(5),
20
was applicable in their case.
It is the contention
of the respondents that all decisions taken in terms of the Act are
subject to review or appeal in one
of two ways, the nature of the
review or appeal procedure being dependent on the nature of the
decision. First, in terms of
section 8(1) of the Act, an official
who refuses entry to any person, or finds any person to be an
illegal foreigner, shall
on the prescribed form inform that person
that he or she may in writing request the Minister to review that
decision.
21
The second procedure is found in section 8(4) of the Act.
22
It pertains to decisions other than an immigration officer’s
refusal of entry into the country or finding of a person to
be an
illegal foreigner, which materially and adversely affect the rights
of that person. The aggrieved person may approach
the
Director-General within 10 working days of receiving notice of the
decision. Section 8(3) makes it compulsory to be informed
of the
decision in the prescribed manner.
23
According to the
respondents, the applicants deliberately attempted to conflate the
procedures in sections 8(1) and 8(4), effectively
submitting that
PAJA should be applicable in respect of all decisions taken under
the Act. That, submit the respondents, could
not have been
intended by the legislature, as it would severely compromise the
speedy procedures designed to ensure that where
a person has been
found to be an illegal foreigner, clarity be obtained as soon as
possible. They contend that the applicants
have not made use of
the internal remedy procedure and have avoided it, as it is not in
their interests to do so.
The respondents also
submit that the applicants are not without remedy. They are still
entitled to apply for condonation of
the late filing of a review
application, and may still apply to the Department to have their
status as prohibited persons lifted.
The effect of the High Court
judgment was to defer the applicants’ entitlement to approach a
court, based on PAJA they contend,
and did not deny them the right
to be heard on the merits as the applicants aver.
The respondents
further submit that there is nothing in section 8(1) of the Act
that entitles anyone affected by an administrative
decision to
reasons before an appeal. They argue that the wording of section 8
of the Act did not entail that the PAJA procedure
would run
concurrently with the exercise of the internal remedy provided for
in section 8(1) of the Act. The applicants were
in fact not in
danger of being deported at the time, notwithstanding that the
respondents would indeed have been entitled to
do so.
The respondents add
that the applicants were aware of the reasons for the termination
of their permanent residence permits.
It is therefore reasonable
to conclude that the Department’s letter dated 9 January 2007, in
which those reasons were spelled
out, was a measure taken out of
caution.
Finally, the
respondents interpret the Act to provide that a person found to be
an illegal immigrant must make representations
to the Minister for
review, who then responds as a matter of urgency. The Minister
would, as required by PAJA, be obliged
to furnish reasons for an
adverse finding. This, the respondents submit, is the point at
which PAJA becomes applicable.
Application for leave
to appeal
A threshold requirement in applications for leave to
appeal to this Court is that the case raises or is connected with a
constitutional
matter.
24
Also important is the requirement that there be prospects of
success, and ultimately, whether it is in the interests of justice

to hear a matter.
25
Constitutional matter
The applicants raise important questions regarding the
interpretation of section 7(2) of PAJA and how, in the light of
this
provision, section 8(1) of the Act must be read. This Court
has held that “[a]s PAJA gives effect to section 33 of the
Constitution,
matters relating to the interpretation and
application of PAJA will of course be constitutional matters.”
26
Indeed at the core of the applicants’ challenge is the
interpretation and application of section 7(2) of PAJA in relation

to section 8(1) of the Act in the light of the administrative
justice protections enshrined in section 33 of the Constitution.
27
The applicants also contend that because of the existing
uncertainty relating to what constitutes exhaustion of an internal

remedy, a person could be denied access to courts, protected under
section 34 of the Constitution. The questions raised are

constitutional issues which fall squarely within the jurisdiction
of this Court.
interests of justice
It is in addition necessary to consider whether it is
in the interests of justice to grant the application. This matter
brings
to light the need for clarity regarding the relationship
between section 7(2) of PAJA and section 8(1) of the Act. Given
the
vast number of foreign nationals who take up residence or seek
refuge in South Africa, it is important to settle their rights
and
duties on the one hand, and those of government on the other. It
is therefore in the interests of justice that this matter
be heard
and leave to appeal be granted. And I do so.
The duty to exhaust
internal remedies
Under the common
law, the existence of an internal remedy was not in itself
sufficient to defer access to judicial review until
it had been
exhausted.
28
However, PAJA significantly transformed the relationship between
internal administrative remedies and the judicial review
of
administrative decisions. Section 7(2) of PAJA provides:
“
(
a
) Subject
to paragraph (
c
), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy provided for
in any other law has first been exhausted.
(
b
) Subject to paragraph (
c
)
,
a
court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph (
a
) has been exhausted,
direct that the person concerned must first exhaust such remedy
before instituting proceedings in
a court or tribunal for
judicial review in terms of this Act.
(
c
) A court
or tribunal may, in exceptional circumstances and on application
by the person concerned, exempt such person from
the obligation
to exhaust any internal remedy if the court or tribunal deems it
in the interest of justice.”
Thus, unless exceptional
circumstances are found to exist by a court on application by the
affected person, PAJA, which has a
broad scope and applies to a wide
range of administrative actions, requires that available internal
remedies be exhausted prior
to judicial review of an administrative
action.
29
Internal remedies
are designed to provide immediate and cost-effective relief, giving
the executive the opportunity to utilise
its own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a
vital role in providing
litigants with access to justice, the importance of more readily
available and cost-effective internal
remedies cannot be gainsaid.
30
First, approaching a
court before the higher administrative body is given the
opportunity to exhaust its own existing mechanisms
undermines the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping the
executive role and
function.
31
The scope of administrative action extends over a wide range of
circumstances, and the crafting of specialist administrative

procedures suited to the particular administrative action in
question enhances procedural fairness as enshrined in our
Constitution.
Courts have often emphasised that what constitutes a
“fair” procedure will depend on the nature of the
administrative
action and circumstances of the particular case.
32
Thus, the need to allow executive agencies to utilise their own
fair procedures is crucial in administrative action. In
Bato
Star
, O’Regan J held that––
“
a court should be
careful not to attribute to itself superior wisdom in relation to
matters entrusted to other branches of government.
A court should
thus give due weight to findings of fact and policy decisions made
by those with special expertise and experience
in the field. The
extent to which a court should give weight to these considerations
will depend upon the character of the
decision itself, as well as
on the identity of the decision-maker … .
A
decision that requires an equilibrium to be struck between a range
of competing interests or considerations and which is to
be taken
by a person or institution with specific expertise in that area
must be shown respect by the courts. Often a power
will identify a
goal to be achieved, but will not dictate which route should be
followed to achieve that goal. In such circumstances
a court
should pay due respect to the route selected by the
decision-maker.”
33
Once an administrative
task is completed, it is then for the court to perform its review
responsibility, to ensure that the administrative
action or decision
has been performed or taken in compliance with the relevant
constitutional and other legal standards.
34
Internal
administrative remedies may require specialised knowledge which may
be of a technical and/or practical nature.
35
The same holds true for fact-intensive cases where administrators
have easier access to the relevant facts and information.
Judicial
review can only benefit from a full record of an internal
adjudication, particularly in the light of the fact that
reviewing
courts do not ordinarily engage in fact-finding and hence require a
fully developed factual record.
The duty to exhaust
internal remedies is therefore a valuable and necessary requirement
in our law. However, that requirement
should not be rigidly
imposed. Nor should it be used by administrators to frustrate the
efforts of an aggrieved person or
to shield the administrative
process from judicial scrutiny. PAJA recognises this need for
flexibility, acknowledging in section
7(2)(c) that exceptional
circumstances may require that a court condone non-exhaustion of
the internal process and proceed
with judicial review nonetheless.
36
Under section 7(2) of PAJA, the requirement that an individual
exhaust internal remedies is therefore not absolute.
What constitutes
exceptional circumstances depends on the facts and circumstances of
the case and the nature of the administrative
action at issue.
37
Thus, where an internal remedy would not be effective and or where
its pursuit would be futile, a court may permit a litigant
to
approach the court directly. So too where an internal appellate
tribunal has developed a rigid policy which renders exhaustion

futile.
The principle of
exhaustion of domestic remedies is recognised in international law,
albeit in a different context.
38
International law
A useful analogous requirement in international law is
the customary international law duty to exhaust available domestic
remedies
before approaching an international tribunal.
39
This international law principle was developed to provide states
with the opportunity to address alleged violations and disputes

through their own internal processes before resorting to
intervention by an international tribunal. This affords states the

opportunity to find their own solutions and to make beneficial use
of their access to relevant facts, information as well as
their
familiarity with the technicalities of the dispute. In the
international context:
“
A condition for
the application of the local remedies rule is that it must first be
determined whether those remedies exist,
which implies the
corresponding duty of the state to provide them. . . . Thus, the
process of exhaustion
is not the essence or raison d’etre
of the rule; it is the
actual redress
for the wrong suffered
that constitutes its fundamental element and ultimate purpose.
Furthermore, the remedies to be exhausted
include all those that
are afforded under the municipal law of the accused state and are
capable of addressing the alleged
wrongs”
40
(Footnote
omitted).
The approach of the
African Commission on Human and Peoples’ Rights (African
Commission) is that a remedy must be “available,
effective and
sufficient” to redress the complaint.
41
In this regard, the African Commission has decided that:
“
A remedy is
considered available if the petitioner can pursue it without
impediment, it is deemed effective if it offers a prospect
of
success, and it is found sufficient if it is capable of redressing
the harm complaint.”
42
In order to qualify
as an available remedy, it is the approach of the African
Commission that a complainant must have the ability
to make use of
the remedy in the circumstances of his or her case.
43
Similarly, the Inter-American Commission on Human Rights has
interpreted the duty to exhaust domestic remedies as existing
only
when these remedies formally exist and are adequate to protect the
legal interest infringed. They must also be effective
to produce
the result for which they were intended.
44
In a constitutional
democracy like ours, where the substantive enjoyment of rights has
a high premium, it is important that
any existing administrative
remedy be an effective one.
45
A remedy will be effective if it is objectively implemented,
taking into account the relevant principles and values of

administrative justice present in the Constitution and our law. An
internal remedy must also be readily available and it must
be
possible to pursue without any obstruction, whether systemic or
arising from unwarranted administrative conduct. Factors
such as
these will be taken into account when a court determines whether
exceptional circumstances exist, making it in the
interests of
justice to intervene.
Thus, as the
international jurisprudence illustrates, judicial enforcement of
the duty to exhaust internal remedies, in giving
content to the
“exceptional circumstances” exemption, must consider the
availability, effectiveness and adequacy of the
existing internal
remedies.
The proper
interpretation of section 7(2) of PAJA
The applicants aver that to impose the internal remedy
requirement rigidly would result in an unconstitutional ouster of a
court’s
jurisdiction. Section 7(2)(a) of PAJA provides that a
court shall review administrative action only when all relevant
internal
remedies provided for in any other law are exhausted. The
provision therefore does not preclude courts from exercising their

judicial review jurisdiction. A court must exercise its judicial
review powers once one of two circumstances arises: when
all
available internal administrative remedies are found to have been
exhausted or when exceptional circumstances are found
to exist.
Although the duty to
exhaust defers access to courts, it must be emphasised that the
mere lapsing of the time-period for exercising
an internal remedy
on its own would not satisfy the duty to exhaust nor would it
constitute exceptional circumstances.
46
Someone seeking to avoid administrative redress would, if it were
otherwise, simply wait out the specified time-period and
proceed to
initiate judicial review. That interpretation would undermine the
rationale and purpose of the duty. Thus, an
aggrieved party must
take reasonable steps to exhaust available internal remedies with a
view to obtaining administrative redress.
The applicants relied in
this regard on the decision in
Kiva v Minister of Correctional
Services
.
47
To the extent that this decision indicates otherwise, it cannot be
endorsed.
This is not to say,
however, that if an aggrieved party had made an attempt in good
faith to exhaust internal remedies, but
had been frustrated in his
or her efforts to do so, a court would be prevented from granting
the exemption. It is for the
court to determine, on a case-by-case
basis, whether circumstances exist for judicial intervention.
Given the valuable
purposes that the ‘internal remedies’ requirement fulfils, the
applicants’ contention that section
7(2) of PAJA should be
interpreted not to require their exhaustion, but merely to impose a
time-period, cannot be sustained.
Internal remedies
under section 8 of the Act
The Immigration Act has as its objective the important
task of regulating the admission of foreign nationals to, their
residence
in, and their departure from South Africa.
48
In particular, section 8 of the Act provides for internal
administrative review and appeal procedures regarding decisions

taken in terms thereof, for those seeking to challenge
administrative decisions. It is convenient to set out the
provisions
of section 8 in full:
“
(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.
(2) A person who was refused entry or was found to
be an illegal foreigner and who has requested a review of such a
decision—
(
a
) in a case contemplated in subsection
(1)(
a
), and who has not received an answer to his or her
request by the time the relevant conveyance departs, shall
depart
on that conveyance and shall await the outcome of the
review outside the Republic; or
(
b
) in a case contemplated in subsection
(1)(
b
), shall not be removed from the Republic before
the Minister has confirmed the relevant decision.
(3) Any decision in terms of this Act, other than a
decision contemplated in subsection (1), that materially and
adversely
affects the rights of any person, shall be communicated
to that person in the prescribed manner and shall be accompanied

by the reasons for that decision.
(4) An applicant aggrieved by a decision
contemplated in subsection (3) may, within 10 working days from
receipt of the
notification contemplated in subsection (3), make
an application in the prescribed manner to the Director-General
for the
review or appeal of that decision.
(5) The Director-General shall consider the
application contemplated in subsection (4), whereafter he or she
shall either
confirm, reverse or modify that decision.
(6) An applicant aggrieved by a decision of the
Director-General contemplated 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.
(7) The Minister shall consider the application
contemplated in subsection (6), whereafter he or she shall either
confirm,
reverse or modify that decision.”
Section 8 thus
establishes two channels for review. One route is created under
section 8(1) and the other under section 8(4).
The procedure
applicable in a particular case will depend on the nature of the
administrative decision. In section 8(1),
a person refused entry
into the country or found to be an illegal foreigner must be
notified of his or her right to request
in writing that the
Minister review that decision. If the affected person arrived on a
conveyance about to leave the country,
the request must be
communicated to the Minister without delay.
49
Should the Minister’s response not be obtained by the time the
conveyance departs, the person shall leave and await the
Minister’s
decision outside of the country.
50
In any other case, the affected person has three days within which
to lodge a review application and may not be deported unless
and
until the Minister has confirmed the decision.
51
Presumably the review must occur within a reasonable timeframe.
The procedure
established under section 8(1) stands in contrast to that provided
for under section 8(4). In all cases other
than those contemplated
in section 8(1), where a decision has materially and adversely
affected a person’s rights, the decision
shall be communicated in
the prescribed manner and reasons shall be furnished.
52
Under section 8(4), the affected person may, within 10 working
days, request a review or appeal to the Director-General.
Within a
further 10 days of the receipt of the Director-General’s
decision, the person may seek a ministerial review or appeal.
53
An application in
terms of section 8(1) is therefore more urgent and provides
aggrieved parties with a direct route to the Minister.
Further, a
person affected by a decision falling under section 8(1)(b) is
protected from deportation, pending the Minister’s
review and
confirmation. Section 8 thus provides a detailed internal remedy
structure designed to afford aggrieved persons
administrative
relief as a first step towards addressing their claims.
The internal
remedies under section 8 of the Act illustrate the value and
importance of a tailored remedial structure designed
to cure a
specific administrative irregularity. On the one hand, a finding
that a person who has entered a country to stay
for specific
purposes is an illegal foreigner has a material and adverse effect
on that person. It is therefore in his or
her interest that the
decision be reviewed speedily to ensure its correctness and
fairness. The state, on the other hand,
has a legitimate interest
in the security of its borders and the integrity of its immigration
systems and must take reasonably
speedy yet constitutionally
compliant steps to resolve questions about the legality of the
presence of foreign nationals in
its territory. Section 8(1)
provides this opportunity. It is thus the procedure under section
8(1) and not that under section
8(4) which is applicable in the
applicants’ case.
The
constitutionality of section 8(1) and the time period it stipulates
for a review application is however not before this
Court, and this
judgment remains silent on that issue. It is sufficient to
emphasise that where the legislature has tailored
a statutory
remedy to address a specific administrative harm that remedy must
be exhausted before resort is had to judicial
review, under PAJA,
unless exceptional circumstances exist.
Were the applicants
entitled to reasons?
The applicants had been notified of the decision
declaring them prohibited persons in terms of section 29(1)(f) of
the Act.
Because the decision fell under section 8(1), Ms Franke
notified them on the prescribed form of the three days within which
they may request a review. Indeed, the first and second applicants
indicated their intention to do so once adequate reasons
had been
provided.
The appropriate
response on the part of the applicants at that stage was to request
a ministerial review in terms of section
8(1). Section 8(1) of the
Act required that the applicants request an administrative review
before resorting to the courts.
The applicants
submit that they were unable to request a review without first
receiving reasons for the decision declaring them
illegal
foreigners. Instead, they argue, they were presented with a series
of findings and conclusions of law, as opposed
to reasons which,
they submit, they were entitled to under section 5 of PAJA.
Whereas decisions
made under section 8(3) of the Act require that communication to
the aggrieved person “shall be accompanied
by the reasons for
that decision”, the Act states that a person found to be an
illegal foreigner shall under section 8(1)
be notified “on the
prescribed form”. The respondents seem to interpret this to mean
that under section 8(1) they were
not obliged to provide the
applicants with reasons, although they had nonetheless done so.
This cannot be so.
Section 33(2) of the
Constitution provides a right to written reasons to those whose
rights have been adversely affected by
administrative action.
Indeed PAJA, which was enacted to give effect to this and other
administrative justice rights,
54
states in its preamble that part of the purpose of giving effect to
these rights is to—
“
create a culture
of accountability, openness and transparency in the public
administration or in the exercise of a public power
or the
performance of a public function”.
In keeping with this
important goal, section 5 of PAJA must be viewed as giving effect to
section 33(2) of the Constitution.
55
These two provisions read together entitle the applicants to
reasons. The respondents were thus incorrect in their contention

that the applicants were not entitled to reasons for the immigration
officer’s decision to withdraw their residence permits
and that
there was no obligation on their part to furnish reasons.
The declaration that
a person is an illegal foreigner under section 8(1) impacts
adversely on him or her. In addition to having
to leave the
country, it stigmatises the person and may become a basis for
denial of entry into other foreign countries. As
a consequence, a
person will be anxious to know the basis for the declaration,
particularly in circumstances where it might
be based on a
misunderstanding or incorrect information. In that regard, the
person may want to appeal or have the decision
reviewed and set
aside by a higher authority. Reasons for the finding, as in this
case, are therefore important in seeking
a meaningful review by the
Minister and in enhancing the chances of getting the immigration
agent’s adverse finding overturned.
Further, in our
constitutional democracy, officials are enjoined to ensure that the
public administration is governed by the
values enshrined in our
Constitution.
56
Providing people whose rights have been adversely affected by
administrative decisions with reasons, will often be important
in
providing fairness, accountability and transparency. In the
context of a contemporary democratic public service like ours,

where the principles of batho pele,
57
coupled with the values of ubuntu,
58
enjoin the public service to treat people with respect and dignity
and avoid undue confrontation, the Constitution indeed entitles
the
applicants to reasons for the decision declaring them illegal
foreigners. It is excessively over-formalistic and contrary
to the
spirit of the Constitution for the respondents to contend that
under section 8(1) they were not obliged to provide the
applicants
with reasons.
Although the reasons
must be sufficient, they need not be specified in minute detail,
nor is it necessary to show how every
relevant fact weighed in the
ultimate finding.
59
What constitutes adequate reasons will therefore vary, depending
on the circumstances of the particular case.
60
Ordinarily, reasons will be adequate if a complainant can make out
a reasonably substantial case for a ministerial review
or an
appeal.
In
Maimela
,
61
the factors to be taken into account to determine the adequacy
of reasons were succinctly and helpfully summarised as guidelines

which include–
“
[t]he factual
context of the administrative action, the nature and complexity of
the action, the nature of the proceedings leading
up to the action
and the nature of the functionary taking the action. Depending on
the circumstances, the reasons need not
always be ‘full written
reasons’; the ‘briefest
pro forma
reasons may suffice’.
Whether brief or lengthy, reasons must, if they are read in their
factual context, be intelligible
and informative. They must be
informative in the sense that they convey why the decision-maker
thinks (or collectively think)
that the administrative action is
justified.”
62
(Footnotes
omitted.)
The purpose for which
reasons are intended, the stage at which these reasons are given,
and what further remedies are available
to contest the
administrative decision are also important factors. The list, which
is not a closed one, will hinge on the facts
and circumstances of
each case and the test for the adequacy of reasons must be an
objective one.
Were the applicants
provided with adequate reasons?
When Ms Franke informed the applicants of the
invalidity of their permanent residence permits, she notified them
to that effect
on a form prescribed under section 8(1) and also
presented them each with a letter indicating more fully the basis
for the
decision. The letters made reference to the meeting of 30
November 2006 between them and Ms Franke, when, on the applicants’

own version, she informed them that she was investigating the 2001
“illegal aliens” charges against them. In those letters,
Ms
Franke also informed them of her findings as follows:
“
I have to inform
you that an investigation into your residence status in the
Republic of South Africa has revealed that you
have previously
obtained a South African identity document by fraudulent means. In
terms of
section 25(3)
of the
Immigration Act, 13 of 2002
, as
amended, you therefore, did not qualify for permanent residence
status subsequent to 1 July 2005.
Section 25(3)
clearly stipulates
that permanent residence shall be issued on condition that the
holder is not a prohibited person or an undesirable
person.
You are in terms of
section 29(1)(f)
of the
Immigration Act, a
prohibited person for
being found in possession of a fraudulent identification document.
As a prohibited person, you do not
qualify for a visa, admission
into the Republic, a temporary residence or a permanent residence
permit.”
The contents of the
letter are clear. The applicants were declared prohibited persons
because they obtained their identity
documents fraudulently. On
that basis they had been declared illegal immigrants. Simply put,
their presence in the country
was unlawful and they had to leave or
be deported. Considered in the context of the earlier meeting
where Ms Franke discussed
the allegations of fraud against them,
the basis for the withdrawal of their residence permits could not
have been clearer.
Subsequent to
receiving the letters, however, the applicants, invoking the
Promotion of Access to Information Act
63
(PAIA), proceeded to request a barrage of information from the
respondents. They sought, among other things, all documents
held
by the Department relating to its investigation into their
residence status between 2001 and 2003. They also requested
all
documents held by the Department relating to the investigation into
their residence status and related decisions.
Indeed, as the High
Court noted, the applicants wanted the second and third respondents
to prove almost every allegation beyond
a reasonable doubt before
they took the required steps to seek a ministerial review. They
also raised a plethora of questions
regarding the decision to
terminate their permanent residence status and the validity and
legality of that decision. These
challenges, based on section 6(2)
of PAJA,
64
ought properly to have been the grounds of their review
application. The answers they sought were not necessary for the

purposes of a review application. The reasons for the withdrawal
of their residence permits were thus adequate to enable them
to
request a meaningful review by the Minister. The nature of the
information they sought would instead have been more appropriately

sought from the Minister, in the event that she confirmed Ms
Franke’s decision.
I conclude therefore
that the applicants’ judicial review application was premature
and that they were first required to exhaust
the available
ministerial review. In the light of this conclusion, the judgment
makes no finding with regard to the applicants’
challenge against
the decision to withdraw their residence permits.
In the light of the
fact that the applicants had been provided with adequate reasons
for the purposes of a ministerial review,
the High Court held that
they ought to have proceeded with the internal ministerial review
under section 8 before instituting
judicial review proceedings in
the High Court.
Section 5 of PAJA
The applicants argue that section 5 of PAJA
65
also entitles them to request reasons before review by the
Minister. In the light of the finding that the applicants were

given adequate reasons, the applicants’ argument based on section
5 of PAJA falls away.
Exceptional
circumstances
In the High Court, the applicants sought an order
granting them an exemption from the duty to exhaust available
internal remedies
in terms of section 7(2)(c) of PAJA.
Section 7(2)(c) of
PAJA permits a court to condone a failure to exhaust internal
remedies in exceptional circumstances, when
it is in the interests
of justice to do so. The applicants show no exceptional
circumstances as a basis for a claim to be
exempted from exhausting
the available internal remedy. Their only contention is that they
had not been provided with reasons
enabling them to apply for a
review and that the respondents had indicated that the time period
for them doing so had lapsed.
In
Nichol
,
66
the Supreme Court of Appeal noted, in interpreting section 7(2)(c)
of PAJA, that allegations of procedural or substantive
administrative irregularities do not on their own constitute
exceptional circumstances in review proceedings.
Throughout this
litigation, the applicants have had the benefit of legal
representation. Based on the information at their
disposal, a
meaningful review, as this judgment finds, was thus well within
their reach. I find no justifiable basis for the
applicants’
failure to institute ministerial review proceedings, as was
required by section 8(1) of the Act read with section
7(2) of PAJA.
I agree with the High Court’s conclusion that no exceptional
circumstances existed to warrant an exemption
from the duty to
exhaust internal remedies.
Submissions by the
amicus curiae
Lawyers for Human Rights has been admitted as amicus
curiae in these proceedings. Its Refugee and Migrant Rights
Project specialises
in defending the rights of refugees, asylum
seekers and other marginalised migrants in South Africa. The
amicus curiae describes
its interest in this matter as that of a
party that regularly represents people detained by the Department
in urgent
habeas corpus
applications. It also represents
immigrants facing deportation.
The amicus curiae
contends that the Department has adopted a deliberate and routine
strategy of raising the duty to exhaust
internal remedies when
court proceedings are instituted by applicants seeking orders that
they be released from detention or
not be deported. It argues that
the proper consideration of the relationship between section 7(2)
of PAJA and section 8 of
the Act requires an understanding of the
practical difficulties that arise when invoking internal remedies
under the Act.
The amicus curiae
submits that many of the people who would theoretically be able to
make use of the internal remedies in the
Act are unable to do so in
practice, and that this is the case for many who are detained at
the Lindela Holding Facility.
67
Many detainees do not have access to legal counsel and are unaware
of their right to lodge an internal appeal. Even where
detainees
are aware of their rights, the amicus curiae submits, these rights
are disregarded by immigration officials. Detainees
have no access
to writing materials and often cannot comprehend the relevant
procedures. All the prescribed forms are available
only in English
and there are no interpreters at Lindela. Further, when internal
appeals are occasionally launched, the Minister
delegates her
review authority to the same officials within the detention
facility, defeating much of the purpose of an objective
review
process.
This Court is urged
to hold that, properly interpreted, section 7(2) of PAJA cannot bar
a court’s adjudication of a
habeas corpus
petition. This
is so, it is argued, because section 7(2)(a) does not speak to
habeas corpus
petitions. In the alternative, it was argued
that
habeas corpus
applications always constitute
exceptional circumstances. Further, and in the alternative, the
amicus curiae requests the
Court to decline to make a definitive
ruling on this point but nonetheless to distinguish the present
case from those involving
urgent
habeas corpus
petitions.
The amicus curiae
further argued that although this matter does not involve a
habeas
corpus
application or one seeking to halt an impending
deportation, this Court has, in the past, been willing to provide
guidance
to lower courts notwithstanding the fact that the issues
were moot and that this Court should provide similar guidance to
lower
courts in this matter.
68
A further contention is that the issues raised are unlikely ever
to be reviewed by this Court because of its unsuitability
and
reluctance to sit as an urgent court. For these reasons, it is
contended, these submissions should be given effect by
this Court.
Amici curiae have
made and continue to make and continue to make an invaluable
contribution to this Court’s jurisprudence.
69
Most, if not all constitutional matters present issues, the
resolution of which will invariably have an impact beyond the

parties directly litigating before the Court. Constitutional
litigation by its very nature requires the determination of issues

squarely in the public interest, and in so far as amici introduce
additional, new and relevant perspectives, leading to more
nuanced
judicial decisions, their participation in litigation is to be
welcomed and encouraged.
70
The amicus curiae’s
submissions raise matters of concern regarding the application of
section 7(2) of PAJA to vulnerable immigrants
in detention. That
is not the position of the applicants, who are not in detention.
In addition, they have full legal representation.
This is not a
habeas corpus
case. How section 7(2) should be interpreted
and applied in the situation of detained foreign nationals and
habeas corpus
applications, and the extent to which the
authorities must be proactive in enabling detained people to avail
themselves of
their procedural rights,
71
are matters that require full ventilation in a properly prepared
case on another day. This approach is consistent with this
Court’s
reasoning in
In Re Certain Amicus Curiae Applications
72
holding that:
“
The role of an
amicus is to draw the attention of the court to relevant matters of
law and fact to which attention would not
otherwise be drawn. In
return for the privilege of participating in the proceedings
without having to qualify as a party,
an amicus has a special duty
to the court. That duty is to provide cogent and helpful
submissions that assist the court.
The amicus must not repeat
arguments already made but must raise new contentions; and
generally these new contentions must
be raised on the data already
before the court. Ordinarily it is inappropriate for an amicus to
try to introduce new contentions
based on fresh evidence.”
73
Having said that, this
judgment should not be interpreted to prejudice any potential future
causes of action seeking to challenge
the government’s application
of section 7(2) to other immigration contexts such as those
involving immigrants facing imminent
deportation, including those
being denied access to courts when they bring
habeas corpus
applications in the practical circumstances defined by the amicus
curiae.
74
Conclusion
The reasons provided to the applicants on the
prescribed forms, together with those contained in the letter dated
9 January
2007 were adequate for them to proceed with applications
for a ministerial review of Ms Franke’s decision, withdrawing
their
residence permits. The applicants have not shown that
exceptional circumstances exist for them to proceed directly with
judicial
review. The applicants have therefore not yet exhausted
the available internal remedy under section 8(1) of the Act and
ought
not to have instituted judicial proceedings in the High
Court.
Section 7(2)(b) of
PAJA states:
“
Subject to
paragraph (
c
), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph (
a
)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court
or
tribunal for judicial review in terms of this Act.”
In the light of this
provision, the applicants are directed to proceed within seven days
of this judgment with an application
for a review of the decision
withdrawing their permanent residence status, before they embark on
a judicial review if necessary.
Costs
The applicants appeal against the costs orders in the
High Court made with respect to the interim and main relief they
sought
in that court on the basis that the High Court misdirected
itself by finding that they had no basis for launching an urgent

application for interim relief. They submit that the respondents’
letter dated 7 February 2007 made it clear that their

deportation had been ordered; they no longer had internal remedies;
and they had to leave the Republic, all of which prompted
them to
launch an urgent application. They further argue that the
respondents implicitly acknowledged the need for an application
for
urgent interim relief, when in the High Court, they made an
undertaking not to deport the applicants pending finalisation
of
the matter. Even in the event that they were unsuccessful in this
Court, the applicants submitted during oral argument,
there ought
to be no order as to costs.
The respondents
contend that at no stage have they attempted to or indicated that
they would summarily deport the applicants.
They argue that they
are sensitive to the particular circumstances of persons who have
been found to be illegal foreigners
and would have given the
applicants more than reasonable opportunity to wind up their
affairs before deportation. Finally,
they contend that due to the
fact that the applicants’ main application was subsequently
dismissed, their initial undertakings
were found not to have been
necessary. It was thus appropriate for the reserved costs to have
followed those of the main application.
On the other hand they
argued that this application be dismissed with costs.
The attitude of the
applicants in insisting on being provided with adequate reasons
before they instituted ministerial review
of Ms Franke’s
decision, where the basis for that decision was clearly spelt out
in the letters of 9 January 2007, was not
reasonable. They should
at that stage have applied for ministerial review, particularly
since they had benefited from legal
assistance throughout. I can
find no basis for a finding that the High Court misdirected itself
by ordering costs against
them, as the applicants contend. The
High Court’s order as to costs in that court is therefore
confirmed.
The question of
costs in this Court was particularly contentious. Although the
applicants have been largely unsuccessful they
have raised
important constitutional questions which serve the public interest;
and it is in the interests of justice that
this matter be finally
resolved by this Court.
75
In the same way, even though the applicants insisted on going to
court despite having received adequate reasons, the
over-formalistic
conduct of the respondents who treated the
applicants as though they have no right to reasons in the first
place, was unhelpful
and not without fault. Finally, although the
applicants’ approach to the litigation, resorting to premature
judicial review
might have created undue delay of the process and
inconvenience to the respondents, a cost order against them would
not be
just and equitable. In the result, there is no order as to
costs in this Court.
Order
In the result, the following order is made:
1. The application
for leave to appeal is granted.
2. The application of Lawyers for Human Rights to be
admitted as amicus curiae is granted.
3. The appeal is dismissed.
4. The costs order in the North Gauteng High Court is
confirmed.
5. There is no order as to costs in this Court.
Langa CJ, Moseneke DCJ,
Cameron J, Nkabinde J, Ngcobo J, O’Regan J, Sachs J, Skweyiya J,
Van der Westhuizen J and Yacoob J concur
in the judgment of
Mokgoro J.
Counsel for
the Applicant: Advocate V Soni SC, Advocate S Yacoob,
instructed by Chris Watters Attorneys.
Counsel for
the Respondent: Advocate G Bofilatos, instructed by State
Attorney, Pretoria.
For the
Amicus Curiae: Advocate S Budlender, Advocate K Hofmeyr,
instructed by Lawyers for Human Rights.
1
Koyabe and Others v Minister for Home Affairs and Others
Case No
4754/2007 North Gauteng High Court, Pretoria 18 January 2008, as yet
unreported.
2
96 of 1991.
3
13 of 2002. Section 27(c) provides, in part, that:
“
The
Director-General may issue a permanent residence permit to a
foreigner of good and sound character who—
. . .
(
c
) intends
to establish or has established a business in the Republic and
investing in it or an established business the
prescribed
financial contribution to be part of the intended book
value, and to the members of such foreigner’s immediate
family.
. .”.
4
Section 29(1)(
f
)
provides:
“
(1) The following foreigners
are prohibited persons and do not qualify for a visa, admission
into the Republic, a temporary
or a permanent residence permit:
. . .
(
f
) anyone found in
possession of a fraudulent residence permit, passport or
identification document.”
5
See [50] below.
6
Id.
7
See n 65 below.
8
3 of 2000.
9
Section 7(2)(
a
) of PAJA provides:
“
Subject to
paragraph (
c
), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy provided for in
any other law has first been exhausted.”
10
See [50] below.
11
Section 7(2)(
c
)
of PAJA provides
:
“
A court or tribunal may, in
exceptional circumstances and on application by the person
concerned, exempt such person from the
obligation to exhaust any
internal remedy if the court or tribunal deems it in the interest
of justice.”
12
Section 7(2)(
b
) of PAJA provides:
“
Subject to
paragraph (
c
), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph (
a
)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court
or
tribunal for judicial review in terms of this Act.”
13
Section 33(2) of the Constitution provides
:
“
Everyone whose rights have
been adversely affected by administrative action has the right to
be given written reasons.”
14
See n 65 below.
15
Section 34 of the Constitution provides
:
“
Everyone has the right to have
any dispute that can be resolved by the application of law decided
in a fair public hearing before
a court or, where appropriate,
another independent and impartial tribunal or forum.”
16
See [50] below.
17
Id.
18
See n 65 below.
19
Section 1 of PAJA provides
:
“
(i) “administrative
action” means any decision taken, or any failure to take a
decision, by—
(
a
) an organ of state, when—
(i) exercising a power in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a
public function in terms of any legislation; or
(
b
) a natural or juristic person, other
than an organ of state, when exercising a public power or
performing a public
function in terms of an empowering
provision, which adversely affects the rights of any person and
which has a direct,
external legal effect, but does not
include—
(
aa
) the executive powers or functions
of the National Executive, including the powers or functions
referred to in
sections 79(1) and (4), 84(2)(
a
), (
b
),
(
c
), (
d
), (
f
), (
g
), (
h
),
(
i
) and (
k
), 85(2)(
b
), (
c
), (
d
)
and (
e
), 91(2), (3), (4) and (5), 92(3), 93, 97, 98,
99 and 100 of the Constitution;
(
bb
) the executive powers or functions
of the Provincial Executive, including the powers or
functions referred to
in sections 121(1) and (2), 125(2)(
d
),
(
e
) and (
f
), 126, 127(2), 132(2), 133(3)(
b
),
137, 138, 139 and 145(1) of the Constitution;
(
cc
) the executive powers or functions
of a municipal council;
(
dd
) the legislative functions of
Parliament, a provincial legislature or a municipal council;
(
ee
) the judicial functions of a
judicial officer of a court referred to in section 166 of
the Constitution or of
a Special Tribunal established under
section 2 of the Special Investigating Units and Special
Tribunals Act,
1996 (Act No. 74 of 1996), and the judicial
functions of a traditional leader under customary law or any
other
law;
(
ff
) a decision to institute or
continue a prosecution;
(
gg
) a decision relating to any aspect
regarding the appointment of a judicial officer, by the
Judicial Service
Commission;
(
hh
) any decision taken, or failure to
take a decision, in terms of any provision of the
Promotion
of Access to Information Act, 2000
; or
(
ii
) any decision taken, or failure to
take a decision, in terms of
section 4(l).”
20
">
20
See n 65 below.
21
See [50] below.
22
Id.
23
Id.
24
Section 167(3)(b) of the Constitution.
25
S v Shaik and Others
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC) at para 15. See also
African Christian
Democratic Party v Electoral Commission and Others
[2006] ZACC
1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) at paras
17-8;
Phillips and Others v National Director
of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 30;
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa, and Another
[2004] ZACC
24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19;
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12.
26
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
at para 25.
27
Section 33 of the Constitution provides:
“
(1) Everyone has the right
to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be given
written reasons.
(3) National legislation must be enacted to give
effect to these rights, and must
(a)
provide for the
review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give
effect to the rights in subsections (1) and (2); and
(c)
promote an efficient administration.”
28
Nichol and Another v The Registrar of Pension Funds and Others
2008 (1) SA 383
(SCA) at para 15.
For an
historical and analytical account of the duty to exhaust internal
remedies in South African administrative law see Pretorius
“The
Wisdom of Solomon: The Obligation to Exhaust Domestic Remedies in
South African Administrative Law”
(1999) 116
South
African Law Journal
113.
Discussing
the duty to exhaust internal remedies at common law, Hoexter notes
the following:
“
The mere
existence of an internal remedy is not enough by itself to indicate
an intention that the remedy must first be exhausted
. . . .
[T]here is no general principle at common law that an aggrieved
person may not go to court ‘while there is hope of
extrajudicial
redress’. In fact, there are indications that the existence of a
fundamental illegality, such as fraud or
failure to make any
decisions at all, does away with the common-law duty to exhaust
domestic remedies altogether.” (Footnotes
omitted.)
Hoexter
Administrative
Law in South Africa
(Juta & Co, Ltd, Cape Town 2007) at 479.
For a further analysis of the common law duty to exhaust, as well
as an argument
favouring the common law approach, see Plasket “The
Exhaustion of Internal Remedies and Section 7(2) of the Promotion of
Administrative
Justice Act 3 of 2000”
(2002) 119
South African
Law Journal
50.
29
The Supreme Court of Appeal has noted in
Nichol
above n 28 at
para 15:
“
It
is now compulsory for the aggrieved party in all cases to exhaust
the relevant internal remedies unless exempted from doing
so by way
of a successful application under s 7(2)(
c
).
Moreover, the person seeking exemption must satisfy the court of
two matters: first that there are exceptional circumstances
and
second, that it is in the interest of justice that the exemption be
given.”
30
The Constitution obliges the public administration to promote
certain values which foster an accountable, cost-effective,
transparent
and efficient administration. These values are outlined
in section 195(1)
(b)
, which requires that an “(e)fficient,
economic and effective use of resources must be promoted”; section
195(1)
(e)
, which requires that the needs of people “must be
responded to”; section 195(1)
(f)
, which requires that
public administration “must be accountable”; and section
195(1)
(g)
, which requires that “(t)ransparency must be
fostered by providing the public with timely, accessible and
accurate information.”
See also Hoexter above n
28
“
Courts are unable
to adjudicate effectively on many specialised matters, while
administrative bodies are able to do this more
informally, quickly,
cheaply and expertly- and not necessarily any less justly.” (at
52)
“
In the South African
context, however, the advantages of speed, efficiency and expertise
cannot be taken for granted as they may
perhaps be in older and more
established administrative systems.” (at 64)
31
In
Bato Star
above n 26 at para 45, this Court affirmed the
following:
“
The
Court should take care not to usurp the functions of administrative
agencies. Its task is to ensure that the decisions
taken by
administrative agencies fall within the bounds of reasonableness as
required by the Constitution.”
See also
Burns
and Beukes
Administrative Law under the
1996 Constitution
3
rd
ed (LexisNexis, Durban 2006) 471 and Pretorius (above n 28) at 115.
32
See
Zondi v MEC for Traditional and Local Government Affairs
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) at
paras 113-4;
Chairman, Board on Tariffs and Trade v Brenco Inc
and Others
2001 (4) SA 511
(SCA) at paras 13-4;
Minister of
Public Works and Others v Kyalami Ridge Environmental Association
[2001] ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
(CC) at
para 101;
President of the Republic of South Africa v South
African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1)
SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 219.
33
Above n 26 at para 48.
34
Section 7(2) of
PAJA. See also the preamble of
PAJA.
35
Hoexter above n 30 at 63, suggests that “where the public interest
and the application of policy predominate … it becomes
appropriate
for appeal to lie to a suitably qualified and politically more
accountable official or body.” (Footnote omitted).
She explains
that:
“
Effective
administrative appeal tribunals breed confidence in the
administration as they give the assurance to all aggrieved
persons
that the decision has been considered at least twice and
reaffirmed. More importantly, they include a second decision-maker

who is able to exercise a ‘calmer, more objective and reflective
judgment’ in reconsidering the issue
.”
36
See also section 6(1) of PAJA.
37
Nichol
above n
28 at paras 16-7.
38
For an in-depth overview of this principle in international law, see
Amerasinghe
Local remedies in international law
(Cambridge
University Press, New York 2004).
39
See the
Interhandel
Case (Switzerland v United States of
America)
Preliminary Objections, I.C.J. Reports 1959 , where the
International Court of Justice stated at 27:
“
The rule that
local remedies must be exhausted before international proceedings
may be instituted is a well-established rule
of customary
international law . . . Before resort may be had to an
international court . . . it has been considered necessary
that the
State where the violation occurred should have an opportunity to
redress it by its own means, within the framework
of its own
domestic legal system.”
40
Udombana “So Far, so Fair: The Local Remedies Rule in the
Jurisprudence of the African Commission on Human and Peoples’
Rights” (2003) 97
American Journal of International Law
1
at 5-6.
41
Jawara v The Gambia
(2000) AHRLR 107 (ACHPR 2000) at para 31.
See also
McCarthy v Madigan
[1992] USSC 24
;
503 U.S. 140
(1992) where
Justice Blackmun held at 144, that the threshold question in an
exhaustion inquiry is legislative intent. Where
Congress
specifically mandates exhaustion, it is required. Absent this,
judicial discretion governs although exhaustion principles
should
always be fashioned so as to be consistent with legislative intent
and the statutory scheme. He held further, at 145-8
that exhaustion
serves two general purposes. First, it protects agency authority,
especially where action under review involves
agency discretionary
power or special expertise. Second, it promotes judicial efficiency
by giving agency opportunity to correct
its own errors and creates a
record for the court.
Justice Blackmun further
recognised exceptions to the exhaustion requirement where the
interests of the individual in obtaining
judicial intervention
outweighs the institutional interest in exhaustion: (a) where it may
prejudice subsequent court action
(for example an unreasonable or
indefinite timeframe for administrative action); (b) where there is
doubt whether the agency
can grant effective relief; and (c) where
the administrative body is biased or has predetermined the issue.
42
Jawara
above n 41 at para 32.
43
Id at para 33.
44
Parque Sao Lucas v Brazil
Case 10.301 IACHR Report No 40/03
(2003) at para 31.
45
Reed and Others v Master of the High Court and Others
[2005]
2 All SA 429
(E) at para 20.
46
See
Nichol
above n 28 at para 32.
47
[2007] 1 BLLR 86
(E).
48
See the long title of the Act.
49
Id at
section 8(1)(
a
).
50
Id at s
ection 8(2)(
a
).
51
Id at s
ection 8(2)(
b
).
52
Id at s
ection 8(3).
53
Id at s
ection 8(6).
54
See the long title of PAJA which states that it was enacted in order
“[t]o give effect to the right to administrative action
that is
lawful, reasonable and procedurally fair and to the right to written
reasons for administrative action as contemplated
in section 33 of
the Constitution of the Republic of South Africa, 1996; and to
provide for matters incidental thereto.”
55
Section 5(1) of PAJA states:
“
Any person whose
rights have been materially and adversely affected by
administrative action
and who has not been given reasons
for
the action may, within 90 days after the date on which that person
became aware of the action or might reasonably have
been expected
to have become aware of the action, request that the administrator
concerned furnish written reasons for the
action.” (My emphasis.)
A person who has not been
given reasons for an administrative decision that adversely affects
his or her rights is entitled to
request reasons, which indicates a
prior entitlement to reasons in the first place.
Section 33(2) provides:
“
Everyone whose
rights have been adversely affected by administrative action has
the right to be given written reasons.”
56
See section 195(1) of the Constitution.
57
Batho pele, which means “People First” in Sotho, requires that
public administration should serve the best interests of the
public
by enabling the achievement of individual rights encompassed in the
provisions of the Constitution. See
Van Der
Merwe and Another v Taylor and Others
[2007] ZACC 16
;
2008 (1) SA 1
(CC);
2007 (11) BCLR 1167
(CC) at 71.
In practice this requires that the administration works towards
achieving
high standards of professional
ethics and responsiveness to the needs of people; the provision of
service which is impartial,
fair, equitable and without bias and the
utilisation of resources in an efficient and effective manner in
order to create an
accountable, transparent, and
development-oriented public administration. See the Batho Pele
Handbook available on the Department
of Public Service and
Administration website
http://www.dpsa.gov.za/batho-pele/docs/BP_HB_optimised.pdf accessed
17 August
2009. See also
Cloete and
Mokgoro (eds)
Policies for Public
Service Transformation
(Juta & Co,
Kenwyn 1995) at 7-8.
58
See
S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3)
SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 223-5; 263 and 307. See
especially para 308 where ubuntu is defined as including the
fundamental values of respect,
human dignity and conformity with
basic norms, with an emphasis on conciliation as opposed to
confrontation. These are values
fundamental in an open democratic
society like ours based on equality, human dignity and freedom. See
also
Dikoko v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC) at paras 68-9 and in particular paras 113-21.
59
See
Commissioner for the South African Police Services and others
v Maimela and another
2003 (5) SA (T) at 480.
60
Id.
61
Id.
62
Id at 481.
63
2 of 2000.
64
Section 6(2) of PAJA provides:
“
A court or
tribunal has the power to judicially revie
w
an administrative action if―
(
a
) th
e
administrator who took it―
(i) was not authorised to do so by the empowering
provision;
(ii) acted under a delegation of power which was
not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(
b
) mandatory and material procedure or
condition prescribed by an empowering provision was not complied
with;
(
c
) the action was procedurally unfair;
(
d
) the action was materially influenced by
an error of law;
(
e
) the action was
taken―
(i) for a reason not authorised by the empowering
provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were
taken into account or relevant considerations were not
considered;
(iv) because of the unauthorised or unwarranted
dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(
f
)
the
action itself―
(i) contravenes a law or is not authorised by the
empowering provision; or
(ii) is not
rationally connected to―
(
aa
) the purpose for which it was taken;
(
bb
) the purpose of the empowering
provision;
(
cc
) the information before the
administrator; or
(
dd
) the reasons given for it by the
administrator;
(
g
) the action concerned consists of a failure
to take a decision;
(
h
) the exercise of the power or the
performance of the function authorised by the empowering
provision, in pursuance of
which the administrative action was
purportedly taken, is so unreasonable that no reasonable person
could have so exercised
the power or performed the function; or
(
i
) the action is otherwise unconstitutional or
unlawful.”
65
Section 5 of PAJA provides:
“
(1) Any person
whose rights have been materially and adversely affected by
administrative action and who has not been given
reasons for the
action may, within 90 days after the date on which that person
became aware of the action or might reasonably
have been expected
to have become aware of the action, request that the
administrator concerned furnish written reasons
for the action.
(2) The
administrator to whom the request is made must, within 90 days
after receiving the request, give that person adequate
reasons in
writing for the administrative action.
(3) If an
administrator fails to furnish adequate reasons for an
administrative action, it must, subject to subsection (4)
and in
the absence of proof to the contrary, be presumed in any
proceedings for judicial review that the administrative
action
was taken without good reason.
(4)
(a)
An
administrator may depart from the requirement to furnish adequate
reasons if it is reasonable and justifiable in the
circumstances, and must forthwith inform the person making the
request of such departure.
(b)
In determining whether a departure as
contemplated in paragraph (
a
) is reasonable and
justifiable, an administrator must take into account all
relevant factors, including—
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of the
administrative action concerned;
(iii) the nature and the extent of the departure;
(iv) the relation between the departure and its
purpose;
(v) the importance of the purpose of the departure;
and
(vi) the need to promote an efficient
administration and good governance.
(5) Where an
administrator is empowered by any empowering provision to follow
a procedure which is fair but different from
the provisions of
subsection (2), the administrator may act in accordance with that
different procedure.
(6) (
a
) In
order to promote an efficient administration, the Minister may, at
the request of an administrator, by notice in the
Gazette
publish a list specifying any administrative action or a group or
class of administrative actions in respect of which the

administrator concerned will automatically furnish reasons to a
person whose rights are adversely affected by such actions,

without such person having to request reasons in terms of this
section.
(
b
) The Minister must, within 14 days after
the receipt of a request referred to in paragraph (
a
) and
at the cost of the relevant administrator, publish such list, as
contemplated in that paragraph.”
66
Above n 28 at para 24.
67
Lindela Holding Facility, also known as the
Lindela Repatriation Centre, is established in terms of section 34
of the Act. Foreign
nationals arrested on immigration charges are
sent to this holding facility which is operated by the private
security company
Bosasa (Pty) Ltd on behalf of the Department of
Home Affairs.
68
In support of this submission the amicus curiae cites
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at
para 27.
69
See for example:
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) at paras 6-9, 30-1, 42, 80, 98, 101-2 and
108;
United Democratic Movement v President of the Republic of
South Africa and Others (African Christian Democratic Party and
Others
Intervening; Institute for Democracy in South Africa and
Another as Amici Curiae)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
(CC) at para 9;
Carmichele v Minister of
Safety and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10)
BCLR 995
(CC) at para 62;
Government of the Republic of South
Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001
(1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 17;
August and
Another v Electoral Commission and Others
[1999] ZACC 3
;
1999
(3) SA 1
(CC);
1999 (4) BCLR 363
(CC) at paras 12 and 32;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) at paras 6, 15 and 58;
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras
117 and 120.
70
Budlender writes that this conception of the
amicus curiae under the post-apartheid constitutional order reflects
two important
changes that have resulted from the advent of
constitutional democracy in South Africa:
“
First, it reflects the
underlying theme of participatory democracy in the Final
Constitution. In matters of broad public interest,
such as the
interpretation of the Final Constitution, courts are more disposed
towards listening to the voices of persons other
than the parties
to a particular dispute. Secondly, it reflects the fact that
constitutional litigation often affects a range
of people and
interests that go well beyond those of the parties already before
the court.”
Budlender “Amicus Curiae” in
Woolman
et al
Constitutional Law of South Africa
2
nd
ed. Original Service: 07-06 (Juta & Co, Cape Town 2007) at 8-1.
71
See
Union of Refugee
Women and Others v Director, Private Security Industry Regulatory
Authority and Others
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC) at para 83.
72
[2002] ZACC 13
;
2002 (5) SA 713
(CC);
2002
(10) BCLR 1023
(CC)
.
73
Id
at para 5.
74
See [75]-[77] above.
75
See
Biowatch Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
Case No CCT 80/08, 3 June 2009, as yet unreported, at
paras 16-7;
Affordable Medicines Trust and Others v Minister of
Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6)
BCLR 529
(CC) at para 138.