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[2023] ZAWCHC 328
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T.C and Others v Minister of Home Affairs and Another (15840/2023) [2023] ZAWCHC 328 (22 December 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
In the High Court of
South Africa
(Western
Cape Division, Cape Town)
Case
No: 15840/2023
In the matter
between:
T[...] C[...]
First Applicant
L[...] R[...]
T[...]
Second Applicant
T[...] C[...]
obo E[...] T[...]
Third Applicant
T[...] C[...]
obo M[...] S[...] T[...]
Fourth Applicant
And
THE
MINISTER OF HOME AFFAIRS
First
Respondent
THE
DIRECTOR GENERAL
Second
Respondent
Heard:  11
December 2023
Delivered: 22 December
2023
JUDGMENT
LEKHULENI
J
Introduction
[1]
This application was brought on an urgent basis to compel the first
respondent
("the Minister")
and the Director General of the Department of Home Affairs to abide
by the court order granted by Mayosi AJ, on 20 October 2023,
which
order was obtained by agreement. The applicant essentially seeks a
declaratory order that the Minister has failed to comply
with the
said order in that he failed to adjudicate the applicant's review
application in terms of section 8(6) of the Immigration
Act 13 of
2002 ("the
Immigration Act&quot
;) and to make the outcome
available within 40 (forty) calendar days upon granting of the said
order. The applicant also seeks an
order directing the Minister to
comply with the said order without any further delay and within 7
(seven calendar) days of granting
this order.
[2]
In addition, the applicant prays that should the Minister fail to
comply with the
proposed declaratory order directing his compliance,
the applicant will be entitled to approach this court on the same
papers,
supplemented, if necessary, for an order declaring the
Minister to be in contempt of court and to appear before this court
to explain
his non-compliance, or any further relief required. The
applicant also seeks an order that the Minister be directed to pay
the
costs of this application on an attorney and client scale.
Factual
Background
[3]
The applicant asserts in his founding affidavit that in 2016, he
obtained a work permit
through a third party in South Africa. In
2020, he became aware that his purported work permit was, in fact,
fraudulent and that
that third party defrauded him. Pursuant thereto,
the applicant approached the Department of Home Affairs in good faith
to have
the situation rectified. The applicant voluntarily submitted
the impugned visa to the Department of Home Affairs, seeking a lawful

resolution of the matter. Pursuant to
section 29(1)
of the
Immigration Act, the
applicant was prohibited from qualifying for a
visa or admission into the republic because of having a fraudulent
permit. (prohibited
persons)
[4]
The applicant then applied in terms of
section 29(2)
of the
Immigration Act through
his legal representatives for a declaration
of non-prohibition in terms of
section 29(2)
of the said Act. Section
29(2) provides that the Director General may, on good cause, declare
a person referred to in subsection
(1), in this case, possessing a
fraudulent permit, not to be a prohibited person.
The
applicant applied to the Director General to be declared a
non-prohibited person as per
section 29(2)
of the
Immigration Act.
[5
]
On 12 April 2021, the Director General rejected the applicant's
application in terms
of
section 29(2).
On 17 August 2022, the
applicant brought a review application in terms of
section 8(6)
to
the Minister to review the decision of the Director General. In the
review application before the Minister, the applicant contended
that
a declaration of non-prohibition must be based on the Director
General's finding of good cause but that there was no apparent
effort
by the Director General to do so. The applicant asserted that the
Director General did not comply with the mandatory and
material
procedure prescribed by
section 29(2)
of the
Immigration Act. In
addition, the applicant contended that an error of law influenced the
rejection of his application.
[6]
The Minister failed to adjudicate the applicant’s review
application timeously.
One year lapsed from the date the applicant
submitted his
section 8(6)
review application and has yet to receive
a response from the Minister. On 14 September 2023, the applicant
brought an application
in this court in which he sought an order
reviewing the Minister's failure to decide within a reasonable time
his review application
made in terms of
Section 8(6)
of the
Immigration Act 13 of 2002
. The applicant also sought an order in
this court directing the Minister to adjudicate his
section 8(6)
review application and make the outcome available within 30 calendar
days of granting the order.
[7]
On 20 October 2023, the date of hearing of the application, the
parties agreed
inter se
that the Minister's failure to
adjudicate on the applicant's
section 8(6)
review application be
reviewed. The parties also agreed that the Minister would adjudicate
the applicant's
section 8(6)
review application and make the
necessary outcome available within forty calendar days of granting
the order. The parties' agreement
was made an order of court in terms
of a draft order.
[8]
Ordinarily, in terms of the draft order, the Minister should have
made his decision
on or before 30 November 2023, which is forty days
after the order of 20 October 2023. Notwithstanding, the Minister
failed to
adjudicate the applicant's review application in terms of
section 8(6) of the Act. The applicant avers that despite multiple
correspondences
with the Minister's officials, the Minister failed to
respond accordingly. The applicant thus sought an order in this
application
directing that the Minister must comply with the order of
20 October 2023 within seven calendar days failing, he would be
entitled
to approach this court on the same papers to have the
Minister declared in contempt of court and directed to appear before
this
court to explain his non-compliance and contempt.
Submissions by the
parties
[9]
At the hearing of this application, Ms Ristic, who appeared for the
applicant, submitted
that the order of 20 October 2023 was by
agreement. The delay in the adjudication of the review application
was unreasonable. Counsel
further submitted that court orders must be
respected and not flaunted with impunity. Ms Ristic contended that
the applicant's
attorney went the extra mile to engage the
respondent's officials in good faith, and there was no positive
response. Counsel implored
the court to direct the Minister to comply
with the order of 20 October 2023 within seven days of granting this
order. Counsel
contended further that the court should consider
granting costs against the Minister on an attorney and client scale.
[10]
Ms Shaik, who appeared for the Minister, argued that this application
must be struck from the
roll on the grounds of urgency. Ms Shaik
further submitted that this matter was not urgent and that there was
no evidence whatsoever
that the applicant was threatened with
deportation. Ms Shaik also challenged the manner of service of this
application.
According
to Ms. Shaik, the Minister was not aware of this application as there
was no personal service given to the Minister. She
also suggested
that the application should have been served personally to the
Minister before holding him accountable for being
in contempt of
court.
In her view, the Minister
cannot be held in contempt if the application is served upon a clerk
in his office. It was further contended
that this matter came to the
attention of the State Attorney when the application was served on
them on 6 December 2023. Ms Shaik
urged this court to remove this
matter from the roll.
Applicable Legal
Principles and Discussion
In limine –
Urgency
[11]
In urgent applications the applicant must show that he will not
otherwise be afforded substantial
redress at a hearing in due course.
See
Luna Meubel Vervaardigers (Edms)
Bpk v Makin (t/a Makin’s Furniture Manufacturers)
1977
(4) SA 135
(W) at 137F.
As discussed
above, this matter was instituted on an urgent basis and heard by the
urgent court. The Minister’s legal Counsel
impugned this
procedure and submitted that the applicant should have proceeded in
the normal course as there was nothing urgent
in the matter.
Furthermore, Ms Shaik submitted that the applicant would be afforded
substantial redress at the hearing in due course.
For this reason, Ms
Shaik implored the court to remove the matter from the roll.
[12]
It is common cause that this court made an order by agreement on 20
October 2023 that the Minister
must decide on the review application
of the applicant in terms of
section 8(6)
of the
Immigration Act
within
forty calendar days from the date of the court order. It is
also common cause that, to date, that order has not been complied
with.
The Minister still needs to decide on the applicant's review
application. Thus, the Minister is in breach of the court order
granted
on 20 October 2023. Notwithstanding, the applicant brought
this application to compel the Minister to decide within 7 (seven)
calendar
days from the date of the court order.
[13]
It must be stressed that the object of contempt proceedings is the
imposition of a penalty to
vindicate the court’s honour
consequent upon the disregard of its order and to compel the
performance thereof. See
Ferreira v Bezuidenhout
1970 (1) SA
551
(O) at 552. In
Protea Holdings Ltd v Wright & Another
1978
(3) SA 865
(W) Nestadt J, as he then was, observed that if it is
established in committal proceedings that the guilty party continues
to disregard
the order of court the element of urgency sufficient to
justify seeking relief by way of urgent application is thereby
established.
I agree with this conclusion, especially considering the
circumstances of this matter.
[14]
It is irrefutable that the applicant is prejudiced by the delay in
that his status and that of
his family in South Africa remains in
limbo. The bureaucratic inefficiency within the Department of Home
Affairs violates his family's
rights to dignity and the right to live
together without the daily fear and threat of his possible
deportation. Crucially, accountability,
responsiveness and openness
on State organs are the fundamental cornerstones of our Constitution.
The failure of the Minister to
comply with this court's order is a
serious infringement on the integrity and the honour of this court.
It also seriously infringes
on the applicant's constitutional right
to just, procedurally fair, and lawful administrative action
envisaged in section 33 of
the Constitution, read with
section 3
of
the
Promotion of Administrative Justice Act 3 of 2000
.
[15]
In his application to compel the Minister to comply with this court’s
order dated 20 October
2023, the applicant is seeking to preserve the
integrity of the rule of law, which requires that the dignity and
authority of the
courts, as well as their capacity to carry out their
functions, be maintained consistently. Therefore, in my view, this
application
is urgent in the context of all these factors. Ms Shaik's
preliminary point that this matter is not urgent must fail. I turn to

consider the second preliminary point, that of the personal service
on the Minister.
Was the Minister
properly served the order and the application?
[16]
Ms Shaik also submitted that the Minister is not aware of this
application as the application
was not served personally to him but
to a clerk at the Minister's office. Counsel also submitted that the
application was also
served at the office of the State Attorney on 06
December 2023. Ms Shaik submitted that this application should have
been served
personally upon the Minister. For this reason, the
contention proceeded, this matter must be struck from the roll as
service upon
the Minister is defective.
[17]
It is a cornerstone of our legal system that a person is entitled to
notice of legal proceedings
against such person.
Interactive
Trading 115 CC v South African Securitisation Programme
2019
(5) SA 174
(LP) at 176D–F.
Rule
4 of the Uniform Rules of Court regulates the service of processes.
For completeness, rule 4(9) provides as follows:
‘
In
proceedings in which the State or an organ of state, a Minister, a
Deputy Minister, a Premier or a Member of an Executive Council
in
such person’s official capacity is the defendant or respondent,
the summons or notice instituting such proceedings shall
be served in
accordance with the provisions of any law regulating proceedings
against and service of documents upon the State or
organ of state, a
Minister, a Deputy Minister, a Premier or a Member of an Executive
Council.’
[18]
In terms of rule 4(10), whenever the court is not satisfied as to the
effectiveness of the service,
it may order such further steps to be
taken as it deems fit. In terms of this subrule the court has a
discretion, should the circumstances
demand it, to order that some
further steps be taken to bring the matter to the notice of the
defendant or respondent. Importantly,
section 2(2) of the State
Liability Act 20 of 1957
(“the State Lability Act”),
as amended, provides as follows:
“
The
plaintiff or applicant, as the case may be, or his or her legal
representative must-
(a)
after any court process instituting proceedings and in which the
executive authority of a department is cited as nominal defendant
or
respondent has been issued, serve a copy of that process on the head
of the department concerned at the head office of the department;
and
(b) within
five days after the service of the process contemplated in paragraph
(a), serve a copy of that process on the office
of the State Attorney
operating within the area of jurisdiction of the court from which the
process was issued.”
[19]
This section is bolstered by
section 5(1)(a)
of the
Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002
,
which provides that ‘any process by which any legal proceedings
contemplated in
section 3(1)
(for the recovery of a debt against the
State) are instituted, must be served in accordance with the
provisions of
section 2
of the
State Liability Act 20 of 1957
’.
There are exceptions to this rule in
section 5(1)(b)
of the said Act.
However, those exceptions are not relevant for present purposes.
[20]
From a careful reading of these statutes, I do not understand them to
be prescribing personal
service of court process on the Minister
himself. Importantly, these provisions must not be interpreted in a
vacuum. There is an
injunction in section 39(2) of the Constitution
which enjoins courts, when interpreting any legislation, to promote
the spirit,
purport, and objects of the Bill of Rights. An
interpretation of these provisions that better promotes the spirit,
purport and
objects of the Bill of Rights must be adopted.
Invariably, the right implicated is the Minister's right of access to
courts as
enshrined in section 34 of the Constitution.
[21]
A purposive interpretation of
section 2(2)
of the
State Liability Act
indicates
that its objective is to ensure that the executive
authority, the Minister in this case, is afforded effective legal
representation
by the State Attorney. See
Minister of Police and
Others v Samuel Malokwane
(unreported case number 730/21 (SCA) at
para 18. In the present matter, the application was not personally
served upon the Minister;
however, the application was served on the
State Attorney who appeared in these proceedings and represented the
Minister.
[22]
In my view, there was proper compliance with service as envisaged in
rule 4
, read with
section 2(2)
of the
State Liability Act. To
my
mind, the suggestion that the application must be served personally
upon the Minister is fallacious and unsustainable. Ms Shaik's

reliance on the decision of
Safiri and Another v Mhlanga and
Others
(59307/2021 [2022] ZAGPJHC 277 (4 May 2022) is misguided
and misplaced. In that case, the applicants sought an order declaring
the Minister of Police to be in contempt of an order of court which
required the Minister to effect arrest on a party who disregarded
a
court order. The Minister of Police was not a party to the original
application and was not aware of the court order to effect
the
arrest.
[23]
Contrastingly, in this case, the order of 20 October 2023 was
obtained with the consent of the
Minister. After the order was
granted, it was served on Ms Shaik, representing the Minister, on 1
November 2023 by email. The Sheriff
also served the said order on the
Director General on 06 November 2023. On 08 November 2023, and in
abundance of caution, the Sheriff
served the order on the Minister
via the State attorney's office. Thus, this case is distinguishable
from
Safiri and Another v Mhlanga and Others.
[24]
I find it strange and opportunistic to argue that the Minister is not
aware of this application.
As I mentioned, the 20 October 2023 order,
was obtained by agreement with the Minister. Before this application
was instituted,
there were several email exchanges between the
officers representing the Minister and the applicant’s
attorneys. These officials
were informed that the applicant intended
to bring this application. The application was hand delivered at the
office of the State
Attorney on 6 December 2023. Pursuant to that
service, Ms Shaik appeared at the hearing of this matter and
represented the Minister.
In my view, there was proper service of the
application and the order of the 20 October 2023 upon the Minister.
The second point
in
limine
Ms Shaik raised, stands to fail. I
turn to consider the matter on the merits.
The
applicant’s application on the Merits
[25]
In
Secretary of the Judicial Commission of Inquiry into
allegations of State Captur, Corruption and Fraud in the Public
Sector including
Organs of State v Zuma and Others
2021 (5) SA
327
(CC) at para 37, the Constitutional Court confirmed the
requirements for contempt of court application as set out by the
Supreme
Court of Appeal in
Fakie NO v CII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA). The court noted that an applicant who alleges
contempt of court must establish that (a) an order was granted
against the
alleged contemnor, (b) the contemnor was served with the
order or had knowledge of it, and (c) the alleged contemnor failed to
comply with the order. The court observed that once these elements
are established, wilfulness and mala fides are presumed, and
the
respondent bears an evidentiary burden to establish a reasonable
doubt. Contempt will have been established if the respondent
fails to
discharge this burden.
[27]
In the present matter, the respondent did not file any opposing
affidavit. The averments in the
applicant's affidavit are
uncontroverted. On the evidence placed before the court, there can be
no doubt that the Minister is in
contempt of court. It needs no
repetition that on 20 October 2023, this court granted an order by
agreement between the applicant
and the Minister that the latter
would adjudicate the applicant's
section 8(6)
review application
within forty calendar days. Notwithstanding that the order was
obtained by consent, the order was served on
the Minister's attorneys
and on the Minister's office by the Sheriff. In my view, the
inevitable conclusion in the circumstances
is that the Minister was
aware of the order and knew exactly what it required of him.
[28]
In
Pheko v Ekurhuleni City
2015 (5) SA 600
(CC) at para 66,
the court stated that a 'presumption rightly exists that when the
first three elements of the test for contempt
have been established,
mala fides and willfulness are presumed unless the contemnor can lead
evidence sufficient to create a reasonable
doubt as to their
existence. Contempt will be established if the contemnor is
unsuccessful in discharging this evidential burden.’
[29]
As demonstrated above the three elements in this matter have been
established. The Minister bore
an evidentiary burden to refute the
allegation of contempt. The Minister did not file any answering
affidavit. In the final analysis,
I am of the view that the applicant
has succeeded in establishing that the Minister failed to comply with
the court order dated
20 October 2023.
Costs
[30]
The applicant's Counsel has sought costs against the respondent on an
attorney and client scale.
Counsel argued that the conduct of the
Minister in disregarding a court order clearly attracted a punitive
cost order instead of
the normal order.
[31]
It is trite that the question of costs is a matter of the court's
discretion. Generally, costs
follow the result, and successful
parties should be awarded their costs. This rule should be departed
from only where good grounds
for doing so exist.
Gamlan
Investments (Pty) Ltd v Trilion Cape (Pty) Ltd
1996 3 SA 692
(C).
One of the fundamental costs principles is to indemnify a successful
litigant for the expense put through in unjustly having
to initiate
or defend litigation. See
Union Government v Gass
1959 4 SA
401
(A) 413.  The court is expected to take into consideration
the peculiar circumstances of each case, carefully weighing the

issues in each case, the conduct of the parties as well as any other
circumstances which may have a bearing on the issue of costs
and then
make such order as to costs as would be fair in the discretion of the
court.
[32]
Whilst I note in this matter that the respondent failed to comply
with this court's order, I
believe that the costs on a party and
party scale would indemnify the applicant for all the costs incurred
in bringing this application.
Order
[33]
In the result, the following order is granted:
33.1    It
is ordered that the first respondent has failed to comply with a
court order dated 20 October 2023, which
was granted by agreement in
terms of which the first respondent ought to have determined the
first applicant's review application
made in terms of
Section 8(6)
of
the
Immigration Act 13 of 2002
within 40 days from date of court
order.
33.2
The first respondent is directed to comply with the order dated 20
October 2023 within 10 (ten) court days
of this order.
33.3
Should the first respondent fail to comply with this second order
directing his compliance, then the applicant
shall be entitled to
approach this court on the same papers supplemented if necessary for
an order declaring the first respondent
to be in contempt of court
and to appear before the court to explain his non-compliance or any
further relief required.
33.4
The first respondent is ordered to pay the cost of this application
on a party and party scale.
LEKHULENI JD
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant:
Adv
Ristic
Instructed
by:
Eisenberg
& Associates Inc
Suite
904, Touchstone House
7
Bera Street
Cape
Town
For
the Respondent:
Ms
Shaik
Instructed
by:
State
Attorney
22
Long Street
Cape
Town