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[2016] ZACC 3
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Minister of Home Affairs v Rahim and Others (CCT124/15) [2016] ZACC 3; 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC) (18 February 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
124/15
In the matter
between:
MINISTER OF HOME
AFFAIRS
Applicant
and
ABDUL
RAHIM
First Respondent
HOSSAIN
KAMAL
Second Respondent
ZAKIR
HOSSAIN
Third Respondent
HARUM
MOHAMMED
Fourth Respondent
MOHAMMED SALLA
UDDIN
Fifth Respondent
ABDUL
SHAMOL
Sixth Respondent
MUHBUB
ALOM
Seventh Respondent
TOYOBUR
RAHMAN
Eighth Respondent
SUMAN
CHUDHURY
Ninth Respondent
MUSTAFI
GURRAMAN
Tenth Respondent
EUNICE
HAYFORD
Eleventh Respondent
ZAIUR
RAHMAN
Twelfth Respondent
MD
ALAP
Thirteenth Respondent
NORUL
ALOM
Fourteenth Respondent
MAHE
MINTU
Fifteenth Respondent
and
PEOPLE AGAINST
SUFFERING, OPPRESSION
AND
POVERTY
Amicus Curiae
Neutral
citation:
Minister
of Home Affairs v Rahim and Others
[2016]
ZACC 3
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Nkabinde J, Nugent AJ, Van der Westhuizen J
and Zondo J
Judgment:
Nugent AJ
Heard on:
26 November 2015
Decided on:
18 February 2016
Summary:
Immigration Act 13 of 2002
—
section 34(1)
— illegal foreigners — determination of
places of detention — damages for wrongful detention
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the High Court of South
Africa, Eastern Cape Local Division,
Port Elizabeth):
1.
Leave to appeal is granted.
2.
Leave to cross-appeal is granted.
3.
The appeal is dismissed with costs.
4.
The cross-appeal is dismissed.
JUDGMENT
NUGENT
AJ
(
Mogoeng
CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J,
Nkabinde J, Van der Westhuizen J and Zondo J concurring
):
Introduction
[1] The respondents
are all Bangladeshi nationals, save for the eleventh who is from
Ghana. They arrived in this country and
applied for asylum
under section 21 of the Refugees Act.
[1]
They were granted asylum-seeker permits under section 22(1),
which permitted them to be and to remain in the country temporarily
pending the outcome of their applications. Their permits were
extended from time to time, but ultimately their applications
for
asylum were rejected and internal appeals against the rejection
failed.
[2] Having failed to
depart the country, the respondents were arrested and detained,
pending deportation, purportedly under the
authority conferred upon
immigration officers by
section 34(1)
of the
Immigration Act (the
Act).
[2]
That section permits an immigration officer to arrest an
“illegal foreigner” and, subject to various conditions,
to detain him or her or cause him or her to be detained, pending
deportation—
“
in
a manner and at the place … determined by the Director-General
[of the Department of Home Affairs].”
[3] Following their
arrest, the respondents were all detained for various periods,
ranging from 4 to 35 days, in various facilities,
and were later
released. In all cases the respondents were detained in prison
or at a police station, either for the full
period of detention or
for part of the time in prison and part of the time at a police
station. In four cases the respondents
were also detained for
short periods in the Lindela Repatriation Centre, but the application
for leave to appeal made nothing before
us of that distinction.
[4] Alleging they had been unlawfully
arrested and detained, the respondents sued the applicant for damages
in the High Court of
South Africa, Eastern Cape Local Division, Port
Elizabeth (High Court). The arrests and detentions were said to
be unlawful
for various reasons but it is not necessary to deal with
them all. Before us only one reason was pursued, which was that
the places at which they were detained were not places determined for
detention by the Director-General.
[5] It was not
disputed before us, nor in the Supreme Court of Appeal, that at the
relevant time the places at which the respondents
were detained had
not been determined by the Director-General as places for the
detention of illegal foreigners. Indeed,
the Director-General
had not determined any places at all for their detention.
[6] The respondents’
claims were consolidated in the High Court and all were dismissed by
Chetty J. Their appeal to
the Supreme Court of Appeal
succeeded. The Supreme Court of Appeal declared the detention
of the respondents to have been
unlawful, and awarded damages to each
in varying amounts, dependent in each case upon the period for which
each respondent was
detained. The applicant now applies for
leave to appeal to this Court against the orders of the Supreme Court
of Appeal.
The respondents apply for leave to cross-appeal the
amount of damages awarded in each case.
In the High Court
[7] The High Court
found,
upon a construction of
section 34
of the Act,
[3]
that prisons, and by implication police cells and lock-ups, had
indeed been determined by the Director-General as places at which
illegal foreigners may be detained pending deportation. To
reach that conclusion the High Court said:
“
There
is a clear indication in subsection (7), which refers to the
detention of an illegal foreigner in a prison that it is the
place
which the Director-General had determined that an illegal foreigner
be detained pending his or her deportation.”
[4]
In the Supreme Court of Appeal
[8] That construction
of the section was correctly not accepted by the Supreme Court of
Appeal.
[5]
The construction given to subsection (7) by the High Court
overlooks the preceding subsection.
[6]
When seen in the context of subsection (6)
it becomes apparent that subsection (7) refers to illegal foreigners
who have been convicted
and sentenced for an offence under the Act
and are liable to deportation before the expiry of their sentence,
who may thus be handed
over by the prison authorities under
subsection (7) for that purpose.
[9] Navsa ADP,
writing for the Court, considered the purpose for which
section 34(1)
of the Act requires the Director-General to determine places at which
illegal foreigners may be detained.
[7]
He observed that it is an international norm that refugees and others
caught up in migratory regulation have a peculiar status
that
differentiates them from those who are imprisoned by the criminal
justice system. There is no need to repeat in full
the contents
of the instruments he relied upon. I extract only their core
principles.
[10] Navsa ADP drew
attention to the International Convention on the Protection of the
Rights of All Migrant Workers and Members
of their Families, which
provides:
“
Any
migrant worker or member of his or her family who is detained in a
State of transit or in a State of employment for violation
of
provisions relating to migration shall be held, in so far as
practicable, separately from convicted persons or persons detained
pending trial.”
[8]
He pointed out that
the
Inter-American Commission on Human
Rights
has resolved that:
“
The
holding of asylum-seekers and persons charged with civil immigration
violations in a prison environment is incompatible with
basic human
rights guarantees.”
[9]
He also observed that
the Special Rapporteur of the Human Rights Council of the United
Nations, reporting in 2012 on the human rights
of migrants, said:
“
The
Standard Minimum Rules for the Treatment of Prisoners provide that
persons imprisoned under a non-criminal process shall be
kept
separate from persons imprisoned for a criminal offence.
Additionally, the Working Group on Arbitrary Detention stated
in its
deliberation No. 5 that custody must be effected in a public
establishment specifically intended for this purpose or, when
for
practical reasons, this is not the case, the asylum-seeker or
immigrant must be placed in premises separate from those for
persons
imprisoned under criminal law. At the regional level, the
Principles and Best Practices on the protection of Persons
Deprived
of Liberty in the Americas provide that asylum or
refugee-status-seekers and persons deprived of liberty due to
migration
issues shall not be deprived of liberty in institutions
designed to hold persons deprived of liberty on criminal
charges.”
[10]
[11] Against that
background, the Supreme Court of Appeal concluded that the
Director-General was required, by section 34(1) of
the Act,
pertinently to determine the place or places for the detention of
illegal foreigners pending deportation. Absent
evidence that
any determination had been made, it found the detention of the
respondents to have been unlawful, and further, that
they were
entitled to damages.
In this Court
[12] This Court
admitted People Against Suffering, Oppression and Poverty (PASSOP) as
amicus curiae. PASSOP is a community-based,
non-profit
organisation and grassroots movement that works to protect and
promote the rights of all refugees, asylum-seekers and
immigrants in
South Africa.
[13] Much was made
before us by the applicant of the fact that the international
instruments to which I have referred do not purport
to be binding law
in this country. Moreover, so it was submitted, those
instruments do not purport to require migrants who
have fallen foul
of migratory regulations to be kept out of prisons and police cells,
but only require them to be separated from
convicted criminals. It
was pointed out that the respondents were not held together with
convicted criminals, and it was
submitted that their detention thus
accorded with those instruments.
[14] Those
submissions seem to me to read more into the findings of the Supreme
Court of Appeal than is justified. The Supreme
Court of Appeal
did not purport to make findings upon whether the respondents were
detained in conflict with international norms,
nor are we called to
do so. Those norms were referred to only to illustrate why it
is that the Legislature required the Director-General
to apply his or
her mind to where illegal foreigners may be detained.
[11]
[15] With regard to
the text of the section, it was submitted for the applicant that
section 34(1) does not require the Director-General
pertinently to
designate any one or more places for the detention of illegal
foreigners. Illegal foreigners may be detained
anywhere, so the
submission went, provided only that the place of detention was under
the authority and control of the State. For
that submission
reliance was placed on the decision of this Court in
Lawyers
for Human Rights
, in which Yacoob J,
writing for the majority, said:
“
Section
34(1) [of the
Immigration Act] is
designed to cater for the
situations in which illegal foreigners are detained in a facility
over which the government has control
and which is serviced or
frequented by State officers.”
[12]
[16] That submission
was similarly advanced before the Supreme Court of Appeal and
correctly rejected. It needs to be borne
in mind that when
Lawyers for Human Rights
was decided,
section 34(1)
read differently, in that it authorised
detention at “the place under the control or administration of
the Department determined
by the Director-General”.
[13]
In the extract of
Lawyers for Human
Rights
, this Court did not purport to
construe the section. As the Supreme Court of Appeal pointed
out in the present case,
section 34(1)
was merely contrasted with
section 34(8)
, which concerns the detention of an illegal foreigner
on a ship that brought him or her to the shores of this country.
Hence,
unlike under
section 34(1)
, his or her detention is not
under the control of the State.
[14]
[17] The purpose for
which the relevant provision was inserted into
section 34(1)
, as
held by the Supreme Court of Appeal, was to ensure the
Director-General applies his or her mind to what places are
appropriate
for the detention of illegal foreigners, having regard to
international norms for the detention of those who fall foul of
migration
regulation, and determines appropriate places for their
detention. Both the text and purpose of the section make it
clear
that, having so applied his or her mind, the Director-General
must pertinently determine the place or places appropriate for that
purpose. Absent a determination having been made, which is not
disputed, I agree with the Supreme Court of Appeal that the
respondents were detained in conflict with the section.
[18] The principal
case advanced on behalf of the applicant, however, was that if we
were to find that the detention of the respondents
at places not
determined was a breach of the section by the immigration officials,
it would constitute a failure to fulfil a public
duty, but would not
translate into a private action for damages. That submission
was made on the premise that proper and
lawful grounds existed for
the arrest and detention of the respondents, the unlawfulness lying
only in detaining them at places
not authorised.
[19] It is
well-established that breach of a public duty is not, by itself,
necessarily actionable in damages. As it was expressed
by Langa
CJ in
Zealand
,
[15]
and recently affirmed in
Mashongwa
:
[16]
“In
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
, this Court considered the relationship between violations
of constitutional rights in public law and delictual claims against
the State in private law. This Court unanimously held, on the
one hand, that ‘private law damages claims are not always
the
most appropriate method to enforce constitutional rights.’ It
held also that ‘[i]t should also be emphasised
that a public
law obligation does not automatically give rise to a legal duty for
the purposes of the law of delict’.
On the other hand,
the Court also held that—
‘[we] should
not be understood to suggest that delictual relief should not lie for
the infringement of constitutional rights
in appropriate
circumstances. There will be circumstances where delictual
relief is appropriate’.”
[17]
(Footnotes omitted.)
[20] In
Country
Cloud
,
[18]
this Court referred, with approval, to a line of cases in which the
Supreme Court of Appeal considered in what circumstances conduct
will
be held to be delictually actionable.
[19]
Those cases concerned conduct that was alleged to be negligent, but
Mashongwa
affirms that the principles apply as much to conduct in breach of a
public duty.
[21] Even if
the
arrest and detention of the respondents was unassailable, the
unlawfulness lying only in the places at which they were detained,
as
submitted on behalf of the applicant, I do not think the applicant
can escape liability for damages.
[22] The cases
referred to earlier establish that whether conduct gives rise to a
delictual action (in the language that is used
for that analysis,
whether the conduct is “wrongful”) is a question of legal
policy. That question is not fact-bound
to the particular case.
It will necessarily apply to all illegal foreigners who find
themselves caught up in the same situation.
So far as their
individual circumstances, and the consequences for each, might
differ, that will determine what particular
harm, or absence of harm,
each might have suffered, which is relevant to the enquiry into
damages. The proper enquiry is
whether conduct of the kind in
issue attracts civil liability for any harm that might have been
caused. As Khampepe J
said in
Country Cloud
:
“
The
statement that harm-causing conduct is wrongful expresses the
conclusion that public or legal policy considerations require
that
the conduct, if paired with fault, is actionable. And if
conduct is not wrongful, the intention is to convey the converse:
‘that public or legal policy considerations determine that
there should be no liability’.”
[20]
And again in
Mashongwa
,
in relation to omissions to perform public duties, Mogoeng CJ
held:
“
[I]n
addressing wrongfulness the question is whether omissions of that
type, in breach of PRASA’s public law obligations,
are to be
treated as wrongful for the purposes not only of public law remedies,
but also for the purpose of attracting delictual
liability sounding
in damages.”
[21]
[23] People who might
find themselves in the position of the respondents are men, women and
children who are in this country illegally,
and liable to summary
deportation. Although they are foreigners, and in this country
illegally, persons in that category
nonetheless enjoy the protection
of the Constitution, at least so far as the principle of legality,
and their right to respect
for their dignity, is concerned. Yet
they are amongst the most vulnerable in our society, with no
political or social influence
over the laws that govern them, often
living on the margins of society, without communal support,
assistance or influence to ensure
compliance with the law by public
officials. Counsel for the applicant submitted that people in
the position of the respondents
are able to vindicate their right to
be dealt with lawfully by seeking interdictory or similar relief
should they find themselves
detained in conflict with section 34(1),
but that seems to me to be cold comfort to people who are unlikely to
have access to the
courts during the time they are awaiting expulsion
from the country.
[24] I see no basis
upon which the vulnerable and marginalised are able to vindicate
their rights other than through a delictual
claim, and no other was
suggested by counsel. There are also no reasons of principle or
public policy or practicality that
militate against recognising a
delictual action. This is not a case in which fulfilment of the
duty cast upon the Director-General
impinges upon matters of
government policy, or, apart from damages awards, calls for allowance
to be made for the appropriate allocation
of resources. It
calls only for the Director-General to do what the Legislature has
required.
[25]
In
S v Bhulwana; S v Gwadiso
this Court remarked upon the need for successful litigants to be
afforded effective relief:
“
Central to a consideration of the interests
of justice in a particular case is that successful litigants should
obtain the relief
they seek. It is only when the interests of
good government outweigh the interests of the individual litigants
that the Court
will not grant relief to successful litigants.”
[22]
Langa
CJ reiterated this in
Zealand:
“
I
accordingly hold that the breach of section 12(1)(a) is sufficient,
in the circumstances of this case, to render the applicant’s
detention unlawful for the purposes of a delictual claim for
damages.
That will be the most
effective way to vindicate the applicant’s constitutional
right
.”
[23]
(Emphasis added.)
[26] But I think the
submission on behalf of the applicant is in any event incorrectly
founded. I do not think the detention,
and the place of
detention, can be separated, as suggested for the applicant, the one
part being lawful, and the other not lawful.
The two are
inextricably linked and go hand-in-hand. For so long as a
person is confined in a place not permitted by
law his or her
confinement is unlawful. That was the approach adopted by the
Supreme Court of Appeal, although not expressly
so stated, and I
agree.
[27] The protection
of personal liberty has a long history in the common law both of this
country and abroad. It is now entrenched
in our law by the
guaranteed right of everyone in section 12(1) of the Constitution to
freedom and security of the person, including
the right not to be
deprived of freedom arbitrarily or without just cause. That the
deprivation of personal liberty is prima
facie unlawful, calling for
justification to avoid liability for damages, was reaffirmed by this
Court in
Zealand
,
which concerned a claim for delictual damages:
“This is not
something new in our law. It has long been firmly established in our
common law that every interference with
physical liberty is prima
facie unlawful. Thus, once the claimant establishes that an
interference has occurred, the burden falls
upon the person causing
that interference to establish a ground of justification. . . . [It]
must be sufficient for a plaintiff
who is in detention simply to
plead that he or she is being held by the defendant. The onus
of justifying the detention then
rests on the defendant. There
can be no doubt that this reasoning applies with equal, if not
greater, force under the Constitution.”
[24]
(Footnotes omitted.)
[28] The premium our Constitution places
on liberty is reinforced by what O’Regan J said in
Bernstein
, although in a different context:
“
Freedom
has two interrelated constitutional aspects: the first is a
procedural aspect which requires that no one be deprived of
physical
freedom unless fair and lawful procedures have been followed.
Requiring deprivation of freedom to be in accordance
with
procedural fairness is a substantive commitment in the Constitution.
The other constitutional aspect of freedom lies
in a
recognition that, in certain circumstances, even when fair and lawful
procedures have been followed, the deprivation of freedom
will not be
constitutional, because the grounds upon which freedom has been
curtailed are unacceptable.”
[25]
(Footnotes omitted.)
O’Regan J, in
her minority judgment, further held in
S
v Coetzee
:
“
[There
are] two different aspects of freedom: the first is concerned
particularly with the reasons for which the State may deprive
someone
of freedom; and the second is concerned with the manner whereby a
person is deprived of freedom. As I stated in [
Bernstein
],
our Constitution recognises that both aspects are important in a
democracy: the State may not deprive its citizens of liberty
for
reasons that are not acceptable, nor, when it deprives citizens of
freedom for acceptable reasons, may it do so in a manner
which is
procedurally unfair. The two issues are related, but a
constitutional finding that the reason for which the State
wishes to
deprive a person of his or her freedom is acceptable, does not
dispense with the question of whether the procedure followed
to
deprive a person of liberty is fair.”
[26]
[29] The detention of the respondents
was indeed unlawful, entitling them to damages, as found by the
Supreme Court of Appeal.
While the application for leave to
appeal should be granted, the appeal by the applicant must be
dismissed.
Application for leave to cross-appeal
[30] The damages the
Supreme Court of Appeal awarded varied from R3 000 to R25 000.
The applicant did not challenge the amounts
awarded, but these were
challenged by the respondents, who applied for leave to cross-appeal
the awards.
[31] The amount to be
awarded as general damages lies quintessentially within the
discretion of the court making the award. An
appeal court will
not interfere in the absence of misdirection, or unless there is a
“substantial variation” or a “striking
disparity”
between the award made and the award the appeal court considers ought
to have been made.
[27]
Here, the trial court having dismissed the actions, the Supreme Court
of Appeal, on reversing that outcome, itself determined
the damages
awarded to each respondent.
[32] That was
explained more fully by Khampepe J in
Trencon
,
[28]
in which it was said that when a court has exercised a “true”
discretion (which includes a discretion to determine
an award of
general damages):
“
It
would ordinarily be inappropriate for an appellate court to interfere
unless it is satisfied that this discretion was not exercised
‘judicially, or that it had been influenced by wrong principles
or a misdirection on the facts, or that it had reached a
decision
which in the result could not reasonably have been made by a court
properly directing itself to all the relevant facts
and principles. .
. . An appellate court ought to be slow to substitute its own
decision solely because it does not agree
with the permissible option
chosen by the lower court’.”
[29]
(Footnotes omitted.)
[33] I find no
misdirection by the Supreme Court of Appeal, nor was any contended
for on behalf of the respondents. Nor could
the respondents say
that the award was one that the Court could not reasonably have made.
The respondents contented themselves
with an assertion the
awards were strikingly disparate from the awards ought to have been
made, but I disagree. It has been
said before that while
“[m]oney can never be more than a crude
solatium
for the deprivation of [liberty] . . . and
there is no
empirical measure for the loss” nonetheless “our courts
are not extravagant in compensating the loss”.
[30]
[
34] There were
sufficient grounds to grant leave to appeal and to cross-appeal, but
both must fail. There remains the question
of costs.
Costs
[35] The principal
issues in this case arose in the appeal, in which the respondents
have succeeded, the cross-appeal raising less
prominent issues.
In
Biowatch
,
[31]
this Court pointed out that
Affordable
Medicines Trust
[32]
held that as a general rule in constitutional litigation, an
unsuccessful litigant in proceedings against the State ought not to
be ordered to pay costs. The general rule
established
in
Affordable
Medicines Trust
was cited with approval
in
Biowatch
:
“[
W]here
the state is shown to have failed to fulfill its constitutional and
statutory obligations, and where different private parties
are
affected . . . the state should bear the costs of litigants who have
been successful against it, and ordinarily there should
be no costs
orders against any private litigants who have become involved. This
approach locates the risk for costs at the
correct door - at the end
of the day, it was the state that had control over its conduct.”
[33]
I
see no reason to depart from that general rule in this case.
Order
[36] The
following order is made:
1.
Leave to appeal is granted.
2.
Leave to cross-appeal is granted.
3.
The appeal is dismissed with costs.
4.
The cross-appeal is dismissed.
For the
Applicant:
W Mokhare SC, M Bofilatos SC and T Ngcukaitobi instructed by the
State Attorney
For the First to Fifteenth Respondents:
A Beyleveld SC, A C Moorhouse and D
Bands instructed by McWilliams
& Elliott Inc
For the Amicus
Curiae:
J Brickhill and L Siyo instructed by the Legal Resources Centre
[1]
130 of 1998.
[2]
13 of 2002.
[3]
Section 34 provides in relevant part:
“
(1)
Without need for a warrant, an immigration officer may arrest an
illegal foreigner
or cause him or her to be arrested, and shall, irrespective of
whether such
foreigner
is arrested, deport him or her or cause him or her to be deported
and may, pending his or her
deportation
,
detain him or her or cause him or her to be detained in a manner and
at the place under the control or administration of the
Department
determined by the
Director-General
,
provided that the
foreigner
concerned—
(a)
shall be notified in writing of the decision to
deport
him or her and of his or her right to appeal such decision in terms
of
this Act
;
(b)
may at any time request any officer attending to him or her that
his
or her detention for the purpose of
deportation
be confirmed by warrant of a
Court
,
which, if not issued within 48 hours of such request, shall cause
the immediate release of such
foreigner
;
(c)
shall be informed upon arrest or immediately thereafter of the
rights set out in the preceding two paragraphs, when possible,
practicable and available in a language that he or she understands;
(d)
may not be held in detention for longer than 30 calendar days
without a warrant of a
Court
which on good and reasonable grounds may extend such detention for
an adequate period not exceeding 90 calendar days; and
(e)
shall be held in detention in compliance with minimum
prescribed
standards protecting his or her dignity and relevant human rights.
. . .
(6)
Any
illegal foreigner
convicted and sentenced under this Act
may be deported before the expiration of his or her sentence and his
or her imprisonment
shall terminate at that time.
(7)
On the basis of a warrant for the removal or release of a detained
illegal foreigner
, the person in charge of the prison
concerned shall deliver such
foreigner
to that immigration
officer or police officer bearing such warrant, and if such
foreigner
is not released he or she shall be deemed to be in
lawful custody while in the custody of the immigration officer or
police officer
bearing such warrant.”
[4]
Rahim and Others v Minister of Home Affairs
[2013] ZAECPEHC 34 at para 14.
[5]
Rahim and Others v Minister of Home Affairs
[2015] ZASCA 92
;
2015 (4) SA 433
(SCA) (Supreme
Court of Appeal judgment).
[6]
See above n 3 for the text of subsections (6) and (7).
[7]
Supreme Court of Appeal judgment above n 5 at
para 20.
[8]
Article 17(3) of the International Convention on
the Protection of the Rights of All Migrant Workers and Members of
their Families
(18 December 1990).
[9]
Human Rights of Migrants, International Standards
and the Return Directive of the EU, recommended by the
Inter-American Commission
on Human Rights Resolution 03/08, 25 July
2008
.
[10]
François Crépeau, “
Report of the Special
Rapporteur on the human rights of migrants
” (2 April
2012).
[11]
Supreme Court of Appeal judgment above n 5 at
para 20.
[12]
Lawyers for Human Rights and Another v
Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC)
(
Lawyers for
Human Rights
) at
para
39.
[13]
The section was amended by
section 35
of the
Immigration Amendment
Act 19 of 2004
with effect from 1 July 2005.
[14]
Supreme Court of Appeal judgment above n 5 at
para 21.
[15]
Zealand v Minister for Justice and
Constitutional Development and Another
[2008]
ZACC 3
;
2008 (4) SA 458
(CC);
2008 (6) BCLR 601
(CC) (
Zealand
)
.
[16]
Mashongwa v Passenger Rail Agency of SA
[2015] ZACC 36
(
Mashongwa
).
[17]
Zealand
above n
15 at para 50.
[18]
Country Cloud Trading CC v MEC, Department of
Infrastructure Development, Gauteng
[2014] ZACC 28
;
2015 (1) SA 1
(CC);
2014 (12) BCLR 1397
(CC)
(
Country Cloud
).
[19]
Fourway Haulage SA (Pty) Ltd v SA National
Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) at para 12;
Trustees
for the Time Being of Two Oceans Aquarium Trust v Kantey &
Templer (Pty) Ltd
[2005] ZASCA 109
;
2006 (3) SA 138
(SCA) at para 10;
Telematrix
(Pty) Ltd v Advertising Standards Authority SA
[2005]
ZASCA 73
;
2006 (1) SA 461
(SCA) at para 13;
Gouda
Boerdery BK v Transnet Ltd
[2004]
ZASCA 85
;
2005 (5) SA 490
(SCA) at para 12; and
Minister
of Safety and Security v Van Duivenboden
[2002]
ZASCA 79
;
2002 (6) SA 431
(SCA) at para 12.
[20]
Country Cloud
above
n 18 at para 21.
[21]
Mashongwa
above
n 16 at para 21.
[22]
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC)
at para 32.
[23]
Zealand
above
n 15
at para 53.
[24]
Id
at p
ara 25.
[25]
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC)
(
Bernstein
)
at para 145. See also the remarks of Leeuw AJ in
De
Vos NO and Others v Minister of Justice and Constitutional
Development and Others
[2015] ZACC 21.
[26]
S v Coetzee
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) at para
159.
[27]
See, for example,
AA
Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A) at 809B-C.
[28]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC).
[29]
Id at para 88.
[30]
Minister of Safety and Security v Seymour
[2006] ZASCA 71
;
2006 (6) SA 320
(SCA)
at para 20.
[31]
Biowatch Trust v Registrar, Genetic Resources,
and Others
[2009] ZACC 14
;
2009 (6) SA
232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
)
.
[32]
Affordable Medicines Trust and Others v
Minister of Health and Another
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (
Affordable
Medicines Trust
) at para 139.
[33]
Biowatch
above n
31 at para 56.