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[2015] ZACC 6
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Minister of Home Affairs and Others v Johnson and Others; Minister of Home Affairs and Another v Delorie and Others (CCT 219/14) [2015] ZACC 6; 2015 (6) BCLR 707 (CC) (24 March 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 219/14
In
the matter between:
MINISTER
OF HOME
AFFAIRS
................................................................................
First
Applicant
DIRECTOR-GENERAL,
HOME
AFFAIRS
..........................................................
Second Applicant
MILLICENT
MOTSI
...................................................................................................
Third
Applicant
MARTIN
JANSEN
.....................................................................................................
Fourth Applicant
and
BRENT
DERECK
JOHNSON
...................................................................................
First
Respondent
LOUISE
HENRIKSON
EGEDAL-JOHNSON
....................................................
Second
Respondent
SAMUEL
BARRY
EGEDAL-JOHNSON
................................................................
Third
Respondent
And
in the matter between:
MINISTER
OF HOME
AFFAIRS
.................................................................................
First
Applicant
DIRECTOR-GENERAL,
HOME
AFFAIRS
............................................................
Second
Applicant
and
CHERENE
THERESE
DELORIE
.............................................................................
First
Respondent
DAVID
ROSS
HENDERSON
.................................................................................
Second
Respondent
DYLAN
JOURDAN
HENDERSON
........................................................................
Third Respondent
LOGAN
JED
HENDERSON
...................................................................................
Fourth
Respondent
Neutral
citation:
Minister of Home Affairs
and Others v Johnson and Others; Minister of Home Affairs and Another
v Delorie and Others
[2015] ZACC 6
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J,
Theron AJ
and Tshiqi AJ
Judgments:
The Court
Decided
on:
24 March 2015
Summary:
Appeal against a High Court order
granting temporary relief — declaration of persons as
“undesirable persons”
— no requirements met to
justify hearing an appeal against an order granting temporary relief
— application for leave
to appeal dismissed — no order as
to costs
ORDER
On
appeal from the Western Cape Division of the High Court, Cape Town:
1.
The application is dismissed with costs.
JUDGMENT
THE
COURT:
[1]
This
is an application for leave to appeal against an order granted on
grounds of urgency by Yekiso J in the Western Cape Division
of the
High Court, Cape Town (High Court). The first and second
applicants, the Minister of Home Affairs and Director-General
of Home
Affairs (Minister and Director-General, respectively), contend that
the order impermissibly encroaches on their executive
authority, by
effectively rendering the provisions of section 7(2) of the Promotion
of Administrative Justice Act
[1]
obsolete and by creating a precedent that allows for internal
remedies under the Immigration Act
[2]
(Act) to be bypassed.
[2]
The High Court order does not, however, have these
deleterious effects and it is thus not in the interests of justice to
grant leave
to appeal. This judgment briefly explains why not.
[3]
The
High Court order related to two applications with similar facts. The
two applications concerned Louise Hendrickson Egedal-Johnson
(Mrs
Johnson) and David Ross Henderson (Mr Henderson), both of whom
overstayed the periods their temporary residence permits granted
them
under the Act. Before the implementation of the new legal
regime that declared each of them an “undesirable person”
under the Act,
[3]
they could
have left the country and applied from outside for a fresh permit if
they had failed to obtain a residence permit while
in South Africa.
The only consequence was an administrative fine.
[4]
The new legal dispensation, however, precludes them from
following that route.
[5]
Being
declared an “undesirable person” precludes each of them
from being granted a temporary permit to return
to South Africa.
[6]
[4]
In each application Mrs Johnson and Mr Henderson
were holders of previous temporary residence permits. When
leaving on an
overseas trip, they were both issued with a notice at
the airport passport control. These notices declared them each
to be
an “undesirable person” under the Act, although
they were both married to South African citizens. The effect of
all this was that both of them were prevented from returning to South
Africa. In respect of Mrs Johnson, this included her
very young
child born of her marriage, who was then separated from the father.
In respect of Mr Henderson, he found himself
separated from his wife
and two children.
[5]
The relief sought in the applications consisted of
two parts. In part A urgent relief was sought to allow the
respective spouses
and the child to return to the country and to
direct the Minister and Director-General to accept and process the
internal appeal
against the declaration of undesirability, pending
either its determination or the final determination of the relief
sought in
part B. In part B, the respondents sought
declarations to invalidate the legal instruments by which the new
legal dispensation
relating to undesirability were brought into
being, together with orders asking for the review and setting aside
of the individual
declarations of undesirability.
[6]
Only
part A of the relief sought was dealt with in the High Court
order.
[7]
In both matters
the order suspended the operation of the directive allowing the
declaration of undesirability and of the
individual declarations
relating to Mrs Johnson and Mr Henderson.
[8]
The order allowed them to return to the country subject to
reasonable conditions prescribed by the Director-General. Part
B of the relief sought was postponed for later determination.
[7]
The
order was only temporary in nature and did not finally dispose of any
factual or legal issues. The validity of the new legal
dispensation
was to be decided in part B of the relief sought in the applications.
The temporary relief granted was specifically
directed at Mrs
Johnson and Mr Henderson and there was no general suspension of the
new legal dispensation in respect of other
persons. None of the
requirements that would justify hearing an appeal against the
granting of temporary relief set out by
this Court in
OUTA
[9]
has thus been met.
[10]
It
is therefore not in the interests of justice to hear this matter.
Order
[8]
The following order is made:
1.
The application is dismissed with costs.
CCT
219/14 Minister of Home Affairs and Others v Johnson and Others
For
the Applicants:
S
Karjiker Attorneys instructed by the State Attorney.
For
the Respondents:
Craig
Smith and Associates.
CCT
219/14 Minister of Home Affairs and Another v Delorie and Others
For
the Applicants:
S
Karjiker Attorneys instructed by the State Attorney.
For
the Respondents:
Fairbridges
Attorneys.
[1]
3
of 2000.
[2]
13
of 2002.
[3]
Section
30(1)(h) of the Act.
[4]
See
section 50(1) of the Act and regulation 35(1) of the Immigration
Regulations, GN R 616
GG
27725,
27 June 2005.
[5]
Regulation
39(1) of the Immigration Regulations, GN R 413
GG
37679,
22 May 2014.
[6]
Sections
10(4) and 30(1) of the Act.
[7]
Johnson
and Others v Minister of Home Affairs and Others; In Re: Delorie and
Others v Minister of Home Affairs and Another
[2014]
ZAWCHC 101
at para 47.
[8]
Id.
[9]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012]
ZACC 18
;
2012
(6) SA 223
(CC)
;
2012 (11) BCLR 1148
(CC) (
OUTA
).
[10]
Id
at paras 41 and 44-7.