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[2018] ZASCA 48
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Director-General, Department of Home Affairs and Another v Islam and Others (459/2017) [2018] ZASCA 48 (28 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No.: 459/2017
In
the matter between:
THE
DIRECTOR-GENERAL
DEPARTMENT
OF HOME AFFAIRS
First
Appellant
MINISTER
OF HOME
AFFAIRS
Second
Appellant
And
NURUL
ISLAM
First Respondent
WAGEEMA
ISLAM
Second Respondent
EMIRATES
AIRLINES
Third Respondent
Neutral
citation
:
The
Director-General, Department of Home Affairs and another v Islam and
others
(459/2017)
[2018] ZASCA 48
(28 March 2018)
Coram:
Maya P, Majiedt, Mbha and Van Der Merwe JJA and Rogers
AJA
Heard:
20 February 2018
Delivered:
28
March 2018
Summary:
Immigration
Act 13 of 2002
– foreigner issued with a valid spousal visa
subsequently found in possession of a fraudulent visa in breach of
s
29(1)(
f
)
of the Act – deemed a prohibited person and not entitled to a
port of entry visa or admission into the Republic –
high
court has no authority to order the Department of Home Affairs
to allow him entry into the Republic and to re-issue
his spousal visa
– such order violates separation of powers – requisites
for the grant of an interim interdict against
the exercise of
statutory powers restated.
ORDER
On
appeal from:
Western
Cape High Court, Cape Town (Salie-Hlophe J sitting as a court of
first instance):
1
The appeal is upheld with no order as to costs.
2
The order of the high court is set aside and replaced with the
following:
‘
The
application is dismissed with no order as to costs.’
JUDGMENT
Maya
P
(Majiedt,
Mbha and Van der Merwe JJA and Rogers AJA concurring):
[1]
This is an appeal,
with
leave of this Court,
against
the judgment of the Western Cape High Court, Cape Town (Salie-Hlophe
J). It follows urgent application proceedings launched
by the second
respondent, Mrs Wageema Islam, on behalf of the first respondent, Mr
Nurul Islam.
[1]
The latter, a
Bangladeshi citizen, is a holder of a spousal visa issued by the
South African Department of Home Affairs (DHA). Mrs
Islam is a South
African citizen and, according to her, the visa was issued on the
strength of her Muslim marriage to Mr Islam
which they concluded in
2008.
[2]
[2]
The litigation was prompted by DHA’s refusal to allow Mr Islam
entry into the country at the Cape Town International Airport
after
he was found in possession of a fraudulent visa (the decision). The
Islams essentially sought an order allowing Mr Islam
admission into
South Africa (the Republic) pending the determination of his request
to the second appellant, the Minister of Home
Affairs (the Minister),
to review the decision
[3]
or, in the event
that the Minister confirmed the decision, pending a judicial review
which would be launched within ten days thereof.
[3]
The high court granted an order directing the appellants
to (a) permit Mr
Islam to enter and remain in the Republic subject to reasonable terms
and conditions as prescribed by them, pending
finalisation of the
matter; (b) re-issue his spousal visa within 21 days from the date of
the order; and (c) if they were unable
to re-issue the visa, to file
affidavits stating the reasons for their non-compliance. It is this
order against which the appellants
appeal.
[4]
The background facts, most of which may be gleaned from the
appellants’ answering affidavits to which there was no reply,
are simple. On 8 January 2016, Mr Islam applied for a spousal visa in
terms of s 11(6) of the Immigration Act 13 of 2002 (the Act).
[4]
The
application was successful. On 2 February 2016 he was issued with a
visa with reference number [...]which he received two days
later. On
3 March 2016, he left the country temporarily to visit his ailing
mother. Upon his departure, the immigration officer
who examined his
passport wrote ‘refer on arrival’ on the date stamp
affixed to the passport. The note was an indication
that Mr Islam’s
travel documents raised concerns that would have to be addressed on
his return. And the concerns were not
addressed at that stage as DHA
does not deny a foreigner the right to depart to his country of
origin on a direct flight and defers
queries until the person seeks
to re-enter the country to avoid delaying the departure of an entire
flight.
[5]
On 10 June 2016 DHA’s permitting section issued an alert
regarding visa labels that had been fraudulently produced. This
was
circulated on its Movement Control System at all South African ports
of entry and would automatically appear on the computer
screen once
the relevant DHA officials logged into the system. The alert read:
‘
*IMPORTANT
NOTICE: VISA LABELS ISSUED FRAUDULENTLY*
Officials
must be on the look-out for visa labels starting with control number
[...] and [...]. These visa labels were issued fraudulently.
If
found, those in possession of these visa labels must be dealt with
according to the
Immigration Act and
Regulations.’
[6]
On 30 June 2016 Mr Islam returned to South Africa on an Emirates
Airlines flight from Dubai which landed at the Cape Town
International
Airport. He presented the immigration officials with a
passport which was endorsed with a visa with reference number [...]
and
control number [...], one of the alert numbers, purportedly
issued by DHA under s 18 of the Act. Upon this discovery, the
immigration
officials referred him to the Inspectorate Office for
further verification. It was duly established that the visa endorsed
on his
passport was not the one which had been validly issued to him
and had not been issued by DHA. It was therefore a fraudulent
document.
[7]
Mr Islam was accordingly refused entry into the country under s
29(1)(
f
)
of the Act. In terms of these provisions a foreigner, ie an
individual who is not a citizen,
[5]
who is found
in possession of a fraudulent visa, is deemed a prohibited person and
does not qualify for a port of entry visa or
admission into the
Republic. His passport was confiscated and he was informed that he
would be boarded on the flight on which he
had arrived and removed
from the country.
[6]
He was
handed and signed various forms prescribed by the Act.
[7]
These documents
mainly informed him that he had been refused entry into the country
and the reason for that decision. They also
informed him of his right
to ask the Minister to review the decision in terms of s 8(1) of the
Act or to make representations to
the first appellant, DHA’s
Director-General (the DG) to review the decision in terms of ss 8(3)
and (4) of the Act.
[8]
[8]
On 4 July 2016 the respondents successfully brought an urgent
application, without notice to the appellants, in the high court
before Samela J. The object of the application was two-fold. It was
to interdict Mr Islam’s allegedly imminent deportation
and to
have DHA ordered to allow him entry into the country pending the
final determination by the Minister of the review of the
decision, or
if the review failed, pending the final determination of a judicial
review of the Minister’s decision. But the
respondents’
respite was short-lived. Samela J subsequently set aside the order on
the same day at the instance of the appellants,
who sought its
reconsideration, as it transpired that the respondents had not
disclosed to the court why DHA refused him entry
into to the country.
Furthermore, Mr Islam could in any event not have been removed from
the country. This was so because he had
already approached the
Minister to have the decision reviewed and s 8(2)(
b
),
which prohibited his removal from the country until that process was
finalised, had automatically kicked in. But the Islams were
not
discouraged by the set back. Two days later they returned to the high
court and launched the proceedings which have resulted
in this
appeal.
[9]
The crisp issues on appeal before us were the appealability of the
interim interdict granted by the high court and, if it was
appealable, whether the Islams had met the requirements for its
grant. The argument advanced on their behalf was that the interdict
was not final in effect and was therefore not appealable as it
allowed the appellants to approach the court on affidavit should
they
be unable to comply with its terms to persuade the court otherwise.
Regarding the merits, it was argued that there was no
proof that Mr
Islam possessed a fraudulent visa in the absence of an investigation
report prepared by the appellants to that end.
[10]
At the outset, I agree with the appellants that the interim interdict
is appealable. Traditionally, under common law, an interim
order was
not appealable except where it was shown that it was (a) final in
effect as it could not be altered by the court which
granted it; (b)
definitive of the rights of the parties in that it granted definitive
and distinct relief; and (c) was dispositive
of at least a
substantial portion of the relief claimed in the main
proceedings.
[9]
The test has
since evolved. So whilst the traditional requirements are still
important considerations, the court may in appropriate
circumstances
dispense with one or more of those requirements if to do so would be
in the interests of, having regard to the court’s
duty to
promote the spirit, purpose and objects of the Constitution
[10]
eg where the interim
order ‘has an immediate and substantial effect, including
whether the harm that flows from it is serious,
immediate, ongoing
and irreparable’.
[11]
[11]
The order clearly meets all the traditional requirements. First, it
is final in effect.
The
very manner in which it is couched renders it so as it commanded Mr
Islam’s admission into the country and the re-issue
of his
spousal visa, with no limiting provision for the institution of a
judicial review if the internal review failed or its lapse
if the
judicial review was not launched. Once these processes were put in
place they could not
be
reconsidered by the court or simply revoked by DHA. Mr Islam’s
status in the
country and the compendium of rights and obligations flowing
therefrom would be determined in terms of his visa under
the Act.
Thus, he would be entitled to challenge any decision that sought to
withdraw his visa by way of review in terms of s 8(4)
and (6) of the
Act and thereafter, if that failed, by judicial review.
[12]
Second, the interdict was definitive of the parties’ rights as
it gave Mr Islam the right to enter and remain in the
country and be
issued with a valid spousal visa; an entitlement to which attached
various rights, including the right to apply
for permanent residence.
Third, it was dispositive of the very essence of the relief sought by
Mr Islam in the ministerial review
– an overturning of the
decision that he was a prohibited person so that he could enter and
remain in the country.
[13]
Furthermore, as will be shown later in the judgment, the interim
interdict was granted in direct contravention of the provisions
of
the Act, which deal with the control and regulation of the presence
of foreign nationals in the Republic. Further, it disregarded
the
appellants’ executive powers and obligations and the
requirements for its grant were not met. It should therefore not
have
been granted in the first place. For that reason alone it would be in
the interests of justice to hear the appeal.
[14]
As to the merits, the test for the grant of an interim interdict is
trite. The applicant must establish (a) a prima facie right
even if
it is open to some doubt; (b) a reasonable apprehension of
irreparable and imminent harm to the right if the interdict
is not
granted; (c) the balance of convenience must favour the grant of the
interdict; and (d) the applicant must have no other
available
remedy.
[12]
Where the
relief is sought against the exercise of statutory power, as here,
the Courts may grant it only in exceptional cases,
in the clearest of
cases when a strong case for that relief has been made out.
[13]
[15]
The first question is whether the Islams established a prima facie
right although open to some doubt. Their case was predicated
on the
unsubstantiated allegations that it was the validly issued spousal
visa which Mr Islam presented to the immigration officer
and was
declared a fraudulent document when he sought re-entry into the
country. DHA had produced no evidence to show that Mr Islam
was in
possession of a fraudulent visa and thus had no legal basis to refuse
him entry into the country, so they asserted. In their
words, ‘the
visa presented by [Mr Islam] to DHA upon his arrival on 30 June 2016
unequivocally evidences a prima facie right,
if not a clear right’.
[16]
But this account may be given short shrift. It cannot stand in light
of the appellants’ contrary version that Mr Islam
produced a
passport endorsed with a visa
that
was unknown to DHA. Importantly, the Islams left the appellants’
version, which was anything but a bare denial or far-fetched,
unchallenged as they did not file a replying affidavit.
Interestingly, it came to light at the hearing of the appeal that
the
ministerial review had failed and that the decision was announced
shortly before the high court hearing. The Islams took no
steps to
have the Minister’s decision judicially reviewed as undertaken
in their notice of motion. Mr Islam simply returned
to his country of
origin.
[17]
Surprisingly, it appears from the high court’s brief judgment
that it rejected the appellants’ uncontested evidence
out of
hand, merely on the basis that Mr Islam had previously been issued
with a valid visa which had not been withdrawn and thus
remained
extant. And on that basis the court held, ‘[f]or that reason
alone, based on that common cause fact, this Court
finds that [Mr
Islam] has established a prima facie right to enter and remain in the
Republic’. Needless to say, this was
an incorrect appraisal of
the evidence which resulted in a material misdirection on the part of
the court. The court did not exercise
its discretion judicially.
[18]
As pointed out above, the provisions of s 29(1)(
f
)
of the Act divested Mr Islam of the right to be issued with a port of
entry visa or admission into the Republic once he
was found in
possession of the fraudulent visa. The order of the high court
compelling the appellants to allow him entry into the
Republic and to
re-issue his spousal visa (relief which, incidentally, was never
sought by the Islams) was in direct conflict with
these statutory
provisions. Its implementation would have adversely impacted various
other provisions of the Act.
[14]
And, ironically, it
would also have rendered Mr Islam an illegal foreigner, ie a
foreigner who is in the Republic in contravention
of the Act.
[15]
This result would
give rise to its own host of negative sequelae for the Islams
including an obligation on the DG to deport Mr Islam.
[16]
He would also be
exposed to the risk of being convicted for entering the country in
contravention of the Act and sentenced to a
term of imprisonment or a
fine.
[17]
[19]
In sum, Mr Islam’s possession of a fraudulent visa could not
vest him with a prima facie right to the interim interdict
he was
granted. This finding dispenses with the need to consider the other
requirements for the grant of an interim interdict and
the appeal
should succeed on this basis alone. But I think it is important to
reiterate the warning sounded in
National
Treasury v Opposition to Urban Tolling Alliance
,
[18]
even though it
relates to the balance of convenience enquiry (which the high court
did not conduct at all). There, the Constitutional
Court did not
merely endorse the common law position which constrains courts to
grant temporary interdicts against the exercise
of statutory power
only in exceptional cases, where a strong case is made out for the
relief sought. The Court took the principle
further and said:
‘
Beyond
the common law, separation of powers is an even more vital tenet of
our constitutional democracy. This means that the Constitution
requires courts to ensure that all branches of Government act within
the law. However, courts in turn must refrain from entering
the
exclusive terrain of the Executive and the Legislative branches of
Government unless the intrusion is mandated by the Constitution
itself ... [W]hen a court weighs up where the balance of convenience
rests, it may not fail to consider the probable impact of
the
restraining order on the constitutional and statutory powers and
duties of the state functionary or organ of state against
which the
interim order is sought. The balance of convenience enquiry must now
carefully probe whether and to which extent the
restraining order
will probably intrude into the exclusive terrain of another branch of
Government. The enquiry must, alongside
other relevant harm, have
proper regard to what may be called separation of powers harm.’
[20]
Regrettably, it does not appear that the high court heeded this
caution. The Islams’ case is, by any stretch of the
imagination, a far cry from the ‘exceptional cases’ or
‘clearest of cases’ envisaged in the decisions mentioned
above. The high court completely ignored the State’s legitimate
interest in the security of its borders and the integrity
of its
immigration systems which it achieves by regulating the admission of
foreign nationals to, their residence in, and their
departure from
the Republic under the Act.
[19]
It made an order
which it had no authority to grant, in total disregard of the
appellants’ powers and duties under the Act.
By so doing it
breached the doctrine of separation of powers. The need for Courts to
scrupulously guard against such intrusions
cannot be overemphasized.
[21]
The appellants did not press for a costs order both in the high court
and on appeal, rightly so having regard to the nature
of the
proceedings.
[20]
I am satisfied in
all the circumstances that the Islams should not be mulcted with the
costs of the proceedings.
[22]
The following order is made:
1
The appeal is upheld with no order as to costs.
2
The order of the high court is set aside and replaced with the
following:
‘
The
application is dismissed with no order as to costs.’
___________________________________________
MML
MAYA
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES:
APPELLANTS:
Adv. H Slingers
Instructed by:
State Attorney, Cape
Town
State Attorney,
Bloemfontein
1
ST
& 2
ND
RESPONDENTS: Adv. S Sethene
Instructed by:
N & W Islam,
Cape Town
[1]
The third respondent, Emirates
Airlines, played no role in the proceedings both in the high court
and on appeal.
[2]
The appellants disputed
the marriage but nothing turns on that for purposes of this appeal.
In any event it was common cause
that Mr Islam was a holder of a valid spousal visa which would, of
necessity, have been issued
on the basis of his spousal relationship
with a South African citizen or permanent resident.
[3]
In terms of s 8 of the
Act.
4
In
terms of
s 11(6)
of the
Immigration Act 13 of 2002
by an entity
designated by the department, Via Facilitation Services. These
provisions read:
‘
Notwithstanding
the provisions of this section, a visitor’s visa may be issued
to a foreigner who is the spouse of a citizen
or permanent resident
and who does not qualify for any of the visas contemplated in
sections 13
to
22
: Provided that –
(a)
such
visa shall only be valid while the good faith spousal relationship
exists…’.
5
In terms of s 1 of
the Act.
[6]
In terms of s 35(10) of
the Act, which provides that ‘[a] person in charge of a
conveyance shall be responsible for the
detention and removal of a
person conveyed if such person is refused admission in the
prescribed manner, as well as for any costs
related to such
detention and removal incurred by [DHA].’
[7]
(a)
Form
1 titled ‘NOTIFICATION REGARDING RIGHT TO REQUEST REVIEW BY
MINISTER [Section 8(1); Regulation 7(1) Part A: In respect
of a
person refused admission at a port of entry’; (b) Form 2
titled ‘NOTICE OF DECISION ADVERSELY AFFECTING
RIGHT OF PERSON
[Section 9, read with section 8(3); Regulation 6] Part A: In
relation to port of entry’; (c) Form 6 titled
‘INTERVIEW
BY IMMIGRATION OFFICER OF PERSON NOT HAVING SATISFIED IMMIGRATION
OFFICER THAT HE OR SHE IS NOT ILLEGAL FOREIGNER
[Section 7(1)(
g
)
read with section 9(3)(
d
);
Regulation 6(6)’; (d) Form 37 titled ‘NOTIFICATION TO A
PERSON AT A PORT OF ENTRY THAT HE OR SHE IS AN ILLEGAL
FOREIGNER AND IS REFUSED ADMISSION [Section 7(1)(
g
)
read with sections 34(8) and 35(10); Regulations 33(10) and (14)]’
and (e) Form 38 titled ‘DECLARATION TO MASTER
OF SHIP OR
PERSON IN CHARGE OF CONVEYANCE THAT PERSON CONVEYED IS ILLEGAL
FOREIGNER AND NOTICE TO MASTER OF SHIP OR PERSON IN
CHARGE OF
CONVEYANCE REGARDING HIS OR HER OBLIGATIONS WHERE PERSON CONVEYED IS
REFUSED ADMISSION [Section 7(1)(
g
)
read with sections 34(8) and 35(10); Regulations 33(1) and (14)]’.
These documents were all published in
GG
No
37679 dated 22 May 2014.
[8]
Section 8 of the Act
governs internal administrative review and appeal procedures
relating to decisions made in terms of the Act
and reads:
‘
(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.’
[9]
Zweni v Minister of Law and
Order
1993 (1) SA 523
(A) at 532J – 533A.
[10]
See
S
v Western Areas Ltd & others
2005
(5) SA 214
(SCA) paras 25-28. See also
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A);
Philani-Ma-Afrika
& others v Mailula & others
[2009] ZASCA 11
;
2010
(2) SA 573
(SCA);
Nova
Property Group Holdings v Julius
Cobbett
[2016] ZASCA 63
;
2016
(4) SA 317(SCA)
;
City
of Tshwane Metropolitan Municipality v Afriforum
[2016]
ZACC 19; 2016 (6) SA 279; 2016 (9) BCLR 1133 (CC).
[11]
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
[2012]
ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
CC.
[12]
Setlogelo
v Setlogelo
1914
AD 221
;
Webster
v Mitchell
1948 (1) SA 1186 (W).
[13]
Gool v
Minister of Justice & another
1955
(2) SA 682
(C);
National
Treasury & others v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) paras 44 and 45.
[14]
Such as
ss 9(3)(
d
),
9(4)(
b
)
and 10(1), which respectively require a valid passport and visa to
enter or depart the Republic, and ss 32, 34(1) and 35(5),
which
respectively authorise the deportation, arrest or removal from the
country of an illegal foreigner.
[15]
In
terms of s 1 thereof.
[16]
In terms of s 32(2) of the
Act.
[17]
In terms of s 49(1) of the
Act.
[18]
Fn 11
paras 44-47.
[19]
The Act’s Preamble.
[20]
Biowatch
Trust v Registrar, Genetic Resources
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).