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[2018] ZASCA 46
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Minister of Home Affairs and Another v Fireblade Aviation Proprietary Limited and Others (13/2016) [2018] ZASCA 46 (28 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 13/2016
In
the matter between:
MINISTER
OF HOME
AFFAIRS
FIRST APPELLANT
DIRECTOR-GENERAL
OF HOME AFFAIRS
SECOND APPELLANT
and
FIREBLADE
AVIATION PROPRIETARY LIMITED
FIRST RESPONDENT
SOUTH
AFRICAN REVENUE SERVICE
SECOND RESPONDENT
DENEL
SOC LIMITED
THIRD
RESPONDENT
Neutral
citation:
Minister
of Home Affairs & another v Fireblade Aviation Ltd
&
others (13/2016)
[2018] ZASCA 46
(28 March 2018)
Coram:
Wallis
JA and Hughes AJA
Heard
:
No
hearing.
Delivered
:
28 March 2018
Summary:
Application
for leave to appeal against judgment in High Court in application
proceedings – such to be dealt with under s
16(1)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the Act)– the fact that
the High Court had granted an enforcement order in terms
of s 18(1)
of the Act and that order has been upheld by the Full Court in an
appeal under s 18(4) does not make the application
one for
special leave to appeal in terms of s 16(1)
(b)
of
the Act – no reasonable prospects of success on appeal –
application for leave to appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Potterill J sitting as court of
first instance:
Leave
to appeal is refused with costs.
JUDGMENT
WALLIS
JA (Hughes AJA concurring)
[1]
When
this application for leave to appeal was placed before us in terms of
ss 17(2)
(b)
and
(c)
of
the Superior Courts Act 10 of 2013 (the Act) the parties were at one
in saying that it was an application for special leave to
appeal in
terms of s 16(1)
(b)
of the Act. We queried that by way of a letter addressed by the
registrar to the parties’ attorneys. In reply, the attorney
for
the applicants accepted that it was in fact an application for leave
to appeal in terms of s 16(1)
(a)
(i)
of the Act. The attorneys for the first respondent (Fireblade)
persisted in submitting that it was an application for special
leave
to appeal, or alternatively was one that was closely akin to an
application for special leave. They contended that this latter
meant
that it is relevant to the determination of the application that two
courts have carefully considered and dismissed the merits
of the
matter. Hence the need for this short judgment.
[2]
Fireblade
brought application proceedings before the Gauteng Division of the
High Court, Pretoria, seeking an order that the First
Applicant, the
Minister of Home Affairs (the Minister), had granted its application
for approval of an ad hoc international customs
and immigration
component of a corporate fixed base aviation operation to be
conducted by officials of the Border Control Operational
Co-ordinating Committee at premises it had established within the
precincts of O R Tambo International Airport. Despite the opposition
of the Minister the application succeeded before Potterill J and an
order was granted on 27 October 2017.
[3]
An
application for leave to appeal was heard on 1 December 2017 and
dismissed on 8 December 2017. On the same day Potterill J granted
an
order in terms of s 18(1) of the Act that the operation of her
earlier order was not suspended pending the determination
of the
application for leave to appeal ‘as well as any subsequent
applications for leave to appeal that may be delivered
by any of the
other respondents as well as any other appeal’. This order was
the subject of an urgent appeal to the full
court in terms of s 18(4)
of the Act. That appeal was dismissed on 14 December 2017.
[4]
The
reason the parties thought that this application for leave to appeal
against Potterill J’s original judgment was an application
for
special leave to appeal was the following. Potterill J had dealt with
the merits of the case initially and also when refusing
leave to
appeal and granting the enforcement order. Her reasoning was
scrutinised and endorsed by the full court when hearing the
s 18(4)
appeal. Accordingly, so the parties reasoned, and the respondent
continues to reason, two courts have considered the
merits and an
appeal to this court is therefore one that requires special leave to
appeal.
[5]
If
incorrect this needed to be corrected because it affects the test to
be applied by this Court in determining the application
for leave to
appeal. It is incorrect because the application before us is not an
application to appeal against the decision of
the full court, but an
application to appeal against the original judgment of Potterill J.
As such it is an application for leave
to appeal against a decision
of a single judge and falls under s 16(1)
(a)
(i)
of the Act. The test to be applied in terms of s 17(1) of the
Act is therefore whether the appeal would have reasonable
prospects
of success or whether there is some other compelling reason why an
appeal should be heard.
[6]
We
are satisfied that neither of these tests is satisfied in this case.
Potterill J’s grant of an order in favour of
Fireblade was
based upon two documents in which it was recorded clearly and
contemporaneously that on 28 January 2016 the Minister
had granted
the approval sought and signed a letter to that effect to be
forwarded to Fireblade. The accuracy of these documents,
one of which
was a letter addressed personally to the Minister, was not challenged
at the time. Instead, when the third respondent
raised an issue, the
Minister in his own handwriting noted that Fireblade be informed that
‘the
approval
we granted them is also suspended’. The underlining was his.
His subsequent attempts to explain that he had not granted Fireblade
the approval it sought, but merely indicated that ‘the major
stakeholders have indicated that the project can go ahead’
were
inconsistent with these documents and we cannot fault the judge’s
rejection of them, subsequently endorsed by the full
court.
[1]
[7]
The
other grounds advanced in support of the application for leave to
appeal can be disposed of shortly. The first was a contention
that
Fireblade applied for the designation of its facility as a port of
entry. That was rightly rejected on the basis of the Minister’s
own letter saying that the application did not involve the
declaration of the facility as a new port of entry. That was followed
by a letter from Fireblade correcting the nature of its application
to one for ad hoc facilities within an existing port of entry
viz O R
Tambo International Airport.
[8]
The
second additional ground in support of the application was a
contention that a decision by the Minister on 27 October 2017 to
reject Fireblade’s application stood until it had been set
aside. Here the Minister is hoist by his own petard. The rejection
of
his version of the events on 28 January 2016 led inexorably to the
conclusion that Fireblade’s application had been approved.
He
was therefore bound by that decision unless and until a court set it
aside and yet he brought no application to set it aside.
[2]
It therefore stood and was affirmed by the judgment of the high
court. As the high court pointed out in its judgment this rendered
redundant the precautionary application by the first respondent to
review and set aside that decision. The Minister cannot rely
on his
own unlawful attempt to circumvent the decision he had lawfully made
to grant Fireblade’s application.
[9]
The
last contention in support of the application was that in granting
the application the Minister acted contrary to s 217
of the
Constitution dealing with the procurement by an organ of state of
goods and services. But the grant of the application did
not involve
an organ of state in procuring goods or services from Fireblade. It
was itself discharging its own statutory functions
in regard to
immigration control and customs at an existing port of entry, to wit,
O R Tambo International Airport. The fact that
for a provisional
period Fireblade was to bear the cost of its doing so cannot alter
that fact.
[10]
One
further point that the applicants raise was the failure of the high
court to deal with a counter-application seeking declaratory
relief
in relation to the proper interpretation of
s 9A
of the
Immigration
Act 13 of 2002
in respect of the Minister’s powers to designate
a place as a port of entry. This was clearly related to the issue
dealt
with in para 7 of this judgment and for the reasons set out
there this was not an issue in dispute between the parties. It was
accordingly not apt for determination in proceedings between
Fireblade and the Minister. In any event we do not think the
arguments
put forward have any reasonable prospects of success.
[11]
We
are accordingly of the opinion that an appeal against Potterill J’s
judgment has no reasonable prospect of success. There
is nothing to
suggest that the issues raised by the Minister are of such a nature
as to warrant the grant of leave to appeal notwithstanding
the lack
of prospects of success.
[12]
The
application for leave to appeal is dismissed with costs.
_______________________
M J D WALLIS
JUDGE OF APPEAL
Appearances:
Applicants:
State Attorney,
Pretoria
and Bloemfontein
First
Respondents: Werksmans Attorneys, Johannesburg;
Symington
& De Kok, Bloemfontein.
[1]
See
Da
Mata v Otto
1972
(3) SA 858
(A) and
Platinum
Holdings (Pty) Ltd v Victoria and Alfred Waterfront (Pty) Ltd
(2004)
8 CLR 231
(SCA) paras 14 and 15 for cases in which the inability to
provide any convincing explanation of contemporaneous documents led
the court to reject evidence as untenable without the need for oral
evidence.
[2]
MEC
for Health, Eastern Cape and Another v
Kirland
Investments (Pty) Ltd t/a Eye & Lazer Institute
2014
(3) SA 481
(CC) paras 101-103;
Department
of Transport and Others v Tasima (Pty) Ltd
[2016]
ZACC 39
;
2017 (2) SA 622
(CC) paras 141-150.