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[2014] ZAWCHC 101
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Johnson and Others v Minister of Home Affairs and Others; InRe: Delorie and Others v Minister of Home Affairs and Another (10310/2014, 10452/2014) [2014] ZAWCHC 101 (30 June 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: 10310/2014
DATE:
30 JUNE 2014
In the matter
between:
BRENT DERECK
JOHNSON
........................................................................
1st
Applicant
LOUISE HENRIKSON
EGEDAL-JOHNSON
..............................................
2nd
Applicant
SAMUEL BARRY
EGEDAL-JOHNSON
......................................................
3rd
Applicant
And
THE MINISTER OF
HOME AFFAIRS
....................................................
1st
Respondent
THE
DIRECTOR-GENERAL, HOME AFFAIRS
...................................
2nd
Respondent
MILLICENT
MOTSI
............................................................................
3rd
Respondent
MARTIN
JANSEN
................................................................................
4th
Respondent
CASE NO:
10452/2014
In the matter
between:
CHEREN THERESE
DELORIE
...........................................................
1st
Applicant
DAVID ROSS
HENDERSON
..............................................................
2nd
Applicant
DYLAN JOURDAN
HENDERSON
.....................................................
3rd
Applicant
LOGAN JED
HENDERSON
................................................................
4th
Applicant
And
THE MINISTER OF
HOME AFFAIRS
..............................................
1st
Respondent
THE
DIRECTOR-GENERAL OF HOME AFFAIRS
.........................
2nd
Respondent
JUDGMENT
DELIVERED ON 30 JUNE 2014
YEKISO, J
[1] On 12 June 2014
and 17 June 2014, two separate applications were launched in this
court by Brent Dereck Johnson, Louise Henrikson
Egedal-Johnson and
Samuel Barry Egedal-Johnson as the first, second and the third
applicant in one such application (“the
Johnson application”)
and Cherene Therese Delorie, David Ross Henderson, Dylan Jourdan
Henderson and Logan Jed Henderson
as the first, second, third and the
fourth applicant in the other application (“the Delorie
application”).
[2] The respondents
in these applications are the Minister of Home Affairs, the
Director-General of Home Affairs, Millicent Motsi
and Martin Jansen,
cited as the first, second, third and the fourth respondent in the
Johnson application, and the Minister of
Home Affairs and the
Director General of Home Affairs, cited as the first and the second
respondent in the Delorie application.
[3] In the Johnson
application, in which the applicants sought leave to be heard as a
matter of urgency, the following relief is
sought under Part A of the
notice of motion, namely: that it be ordered that, pending the final
outcome of the application for
the relief sought in Part B of the
notice of motion, the Immigration Department Directive 9, 2014 issued
on 24 May 2014 under the
hand of the second respondent’s
delegee in that application, shall be inoperative; that the second
applicant’s declaration
of undesirability on 28 May 2014 by the
third and the fourth respondent be suspended; that the second
applicant in the Johnson
application be permitted forthwith to enter
and remain in the Republic of South Africa with the third applicant,
subject to reasonable
terms and conditions.
[4] Under Part B of
the notice of motion in the Johnson application, and on a date to be
determined by the registrar, the applicants
seek an order that: the
first respondent’s decision to bring Regulation 27 of the 2014
Regulations to the Immigration Act,
13 of 2002 (“the
Immigration Act&rdquo
;), into operation on 26 May 2014 be declared
inconsistent with the Constitution of the Republic of South Africa,
1996 (“the
Constitution”) and accordingly invalid, and
that it be reviewed and set aside; the second respondent’s
decision of
24 May 2014 to issue the aforementioned Immigration
Directive 9 of 2014 to the second applicant be declared inconsistent
with the
Constitution and accordingly invalid, and that it be
reviewed and set aside; the third and fourth respondent’s
decision of
28 May 2014 which declared the second applicants to be
“undesirable” in terms of the
Immigration Act be
declared
inconsistent with the Constitution and accordingly invalid, and,
similarly, that it be reviewed and set aside; the first
respondent,
and any other respondent who oppose the application, be ordered to
pay the costs of the application.
[5]In the Delorie
application the following relief is sought as against the first and
the second respondent in that application,
namely, an order condoning
non-compliance with the Uniform Rules of this Court relating to
service and time periods, and directing
that the matter be heard as
one of urgency in terms of rule 6(12) of the Uniform Rules; that
pending the final resolution of the
relief sought in Part B of the
notice of motion, an order directing that the enforcement of
Directive 9 of 2014 issued by the
Deputy Director-General of the
Department of Home Affairs on 24 May 2014, is suspended; an order
directing that the determination,
made by the departmental officials
on 28 May 2014, that the second applicant in the Delori application
is an “undesirable
person” in terms of
section 30(1)(h)
of the
Immigration Act and
the regulations promulgated thereunder, is
suspended.
[6]The further leg
of the order sought in the Delorie application is an order that the
applicants must, within five (5) days of
any order that this court
may give, submit an application to the Department of Home Affairs for
the first respondent or his delegee
to waive (in terms of
section
30(2)
of the
Immigration Act) the
ground of undesirability in terms
of
section 30(1)(h)
of the
Immigration Act in
the case of the second
applicant; and/or the second respondent or his delegee to review and
reconsider the determination that
the second respondent is an
undesirable person in terms of
section 8
(4) of the
Immigration Act;
and
that the first and second respondents must consider such
applications within a reasonable period.
[7]The last leg of
the order sought under paragraph A of the notice of motion in the
Delorie application is an order directing that
the second applicant
be permitted to forthwith enter, remain and work in the Republic of
South Africa, and to travel in and out
of the Republic, subject to
reasonable terms and conditions pending the final resolution of the
relief sought in Part B of the
notice of motion; and/or until the
final determination of the applications referred to in paragraph
[3.1] of the notice of motion
in the Delorie application, any
proceedings reviewing the refusal of such applications, whichever
event shall last occur.
[8]Under Part B of
the notice of motion in the Delorie application, and on a date to be
determined by the registrar, the applicants
will seek an order in the
following terms: an order declaring that
Regulation 27(1)
and
27
(3)
of the Regulations promulgated under the
Immigration Act, are
unconstitutional, unlawful and invalid; an order reviewing,
correcting and setting aside the decision of the first respondent to
bring
Regulation 27(1)
and
27
(3) into operation on 26 May 2014; an
order declaring that Directive 9 of 2014, issued by the Deputy
Director-General of the Department
of Home Affairs on 24 May 2014, is
unconstitutional, unlawful and invalid; an order reviewing,
correcting and setting aside the
decision of the Deputy Director-
General to issue the Directive; an order reviewing, correcting and
setting aside the determination
by officials of the Department of
Home Affairs, made on 28 May 2014, that the second applicant is an
“undesirable person”
in terms of
section 30(1)(h)
of the
Immigration Act.
[9
] In opposing the
relief sought it is contended on behalf of the respondents in both
the Johnson and the Delorie applications that
both applications ought
to be dismissed in view of the fact that the declarations as
undesirable persons in the instance of Egedal-Johnson
in the Johnson
application and Henderson in the Delorie application were
self-created; that the refusal of admission into the Republic
of
Egedal-Johnson and Henderson are as a consequence of their own
conduct; that they are authors of the circumstances giving rise
to
the alleged urgency and that they cannot be allowed to rely on their
self-created urgency in launching these proceedings.
[10] The relief
sought in both the Johnson and the Delorie applications is further
opposed on the basis that this court lacks jurisdiction
to adjudicate
on both these matters. In advancing this contention, it is contended
on behalf of the respondents that Immigration
Regulation 27 which the
applicants seek to challenge as being unconstitutional, as well as
the enabling legislation, in the form
of the
Immigration Act, on
the
basis of which the Immigration Regulations sought to be challenged
were promulgated, constitute executive acts by the
President-in-Cabinet
and the Minister of Home Affairs. It is thus
contended that both the President-in-Cabinet and the Minister of Home
Affairs have
their principal offices in Tshwane; that, in view
thereof, this court lacks jurisdiction not only to adjudicate on the
interim
relief sought, but also on all those issues which constitute
the basis for the relief sought in Part B of the parties’
respective
notices of motion.
[11]Because the
relief sought in both applications is the same and the identity of
the issues are substantially similar, both applications
were heard
together before me on Tuesday, 24 June 2014. After hearing argument
by the parties involved, I reserved judgment.
What follows is my
judgment on the issues in dispute and the respective forms of relief
sought in both applications.
FACTUAL
BACKGROUND: LOUISE HENRIKSON EGEDAL-JOHNSON
[12]Louise Henrikson
Egedal-Johnson, the second applicant in the Johnson application, is a
Danish citizen. She has, on several
occasions since 30 June 2001,
been issued with temporary resident’s permit culminating on 28
February 2012 when she was issued
with a relative’s permit,
permitting her to live with the first applicant in the Johnson
application. She was married to
the first applicant in the Johnson
application on 12 December 2009 in South Africa. It appears that
there is one child born of
the marriage, Samuel Barry Egedal-Johnson,
born on 19 August 2011 and cited as the third applicant in the
Johnson application.
[13]Since her
marriage to the first applicant in the Johnson application, she had
since 2012 been permitted to remain in the Republic
on a relative’s
permit. The first such permit was issued on 28 February 2012 and
was due to expire on 27 February 2014.
She applied for its renewal
on 10 February 2014. As at 28 May 2014 her renewal application had
not as yet been adjudicated upon.
In the meantime the relative’s
permit issued to her on 28 February 2012 expired on 27 February 2014.
On 28 May 2014 she
left South Africa from Cape Town International
Airport together with her husband. On going through passport
control she was declared
an undesirable person and was issued with a
form declaring her as undesirable person on the basis that she had
overstayed her permit
by a period of 90 days. On their return to
Cape Town she was refused entry at the Cape Town International
Airport and subsequently
detained on the basis that she had been
declared an undesirable person. She was subsequently deported to her
country, Denmark,
together with the parties’ child, the third
applicant in the Johnson application.
FACTUAL
BACKGROUND: DAVID ROSS HENDERSON
[14] David Ross
Henderson is cited as the second applicant in the Delorie
application. He is a Zimbabwean citizen but has been permanently
resident and domiciled in Cape Town since about 2005. He held a
valid work permit which allowed him to remain and work in the
country
and to freely live and re-enter. He was joined by his wife, the
first applicant in the Delorie application, during 2007.
At the
stage he was joined by the first applicant, the latter had been a
Zimbabwean national and had travelled under a Zimbabwean
passport.
She had, under those circumstances, lawfully entered the country as
his spouse. The first applicant subsequently
established her status
as a South African citizen. There are two children born of the
marriage, Dylan Jourdan Henderson and Logan
Jed Henderson, the third
and the fourth applicant in the Delorie application, respectively.
Both the children born of the marriage,
the third and the fourth
applicant, were born in Cape Town and are thus South African
citizens.
[15]The first
applicant states in her founding affidavit that her husband, the
second applicant in the Delorie application, was
issued with a work
permit which lapsed on 21 April 2014. She states that he was unable
to apply for an extension of that permit
before it expired. She
explains that in terms of the then applicable legal regime with
regards to issuing of work permits, it
meant that her husband had to
leave South Africa to regularise his status and obtain a fresh work
permit. As he needed to travel
on a business trip to Nigeria at the
time, he had arranged to preface that trip with a stop in Harare,
Zimbabwe, to regularise
his work permit.
[16]On 28 May 2014
the second applicant travelled from Oliver Tambo International
Airport to Harare, Zimbabwe. At passport control,
the officials of
the Department of Home Affairs issued him with a declaration as an
“undesirable person”, ostensibly
in accordance with the
provisions of
section 30(1)(h)
of the
Immigration Act, on
the basis
that he had overstayed his previous permit for a period slightly in
excess of thirty (30) days, that is from 21 April
2014 to 28 May
2014.
[17] On Monday, 2
June 2014, and whilst in Harare, the second applicant approach the
South African High Commission in Harare for
assistance but was
advised that because he was designated as an undesirable person no
assistance could be rendered to him. He
could thus not apply for any
type of permit and could not re-enter the Republic, ostensibly even
in transit for his onward trip
to Nigeria. Having completed his
business out of the country, the second applicant is thus unable to
re-enter South Africa.
LEGAL REGIME
BEFORE 26 MAY 2014
[18] Before the
departure of those parties declared as undesirable persons on 28 May
2014, the legal regime relating to declaration
of persons as
“undesirable persons” had fundamentally changed. This
was in the form of an addition of sub-paragraph
(h) in
section 30(1)
of the
Immigration Act, which
added a further ground on which a
foreigner could be declared an “undesirable person”.
Once sub-section (h) had come
into operation, any person who
overstayed the prescribed number of times could be declared
undesirable by the Director-General.
[19]Further, the
Immigration Regulations published in Government Gazette no 37679 of
22 May 2014, also came into operation on 26
May 2014. Regulation
27(3) thereof provides as follows:
“(3) A person
who overstays after the expiry of his or her visa as contemplated in
section 30(1)(h) of the Act may –
(a) in the case of a
person who overstays for a period not exceeding 30 days, be declared
undesirable for a period of 12 months;
(b) in the case of a
person who overstays for the second time within a period of 24
months, be declared undesirable for a period
of 2 years; and
(c) in the case of a
person who overstays for more than 30 days, be declared undesirable
for a period of 5 years.”
[20]Furthermore, on
24 May 2014, the Deputy Director-General of the Department of Home
Affairs issued Directive 9/2014 which would
operate from 26 May 2014.
On the basis of this Directive all persons who overstayed their
permits would be treated as undesirable
and that, in the case of all
such persons, this status would subsist for a period of 12 months.
[21]It is on the
basis of the factual background set out in paragraphs [12] to [17] of
this judgment and the legal regime set out
in paragraphs [18] to [20]
above that I have to make a determination if the applicants, in both
the applications, have made out
a case for the relief sought in Part
A of the parties’ respective notices of motion. All those
several forms of relief set
out in Part B of the parties’
respective notices of motion are issues that have to be determined at
the judicial review stage
of these proceedings. All that I am
required to determine at this stage of the proceedings is whether the
applicants, in both
instances, have made out a case for the
interdictory relief pending the adjudication, by way of judicial
review, of those several
forms of relief set out in Part B of the
parties’ respective notices of motion. But first, I need to
determine those grounds
of opposition based on lack of urgency and
lack of jurisdiction .
URGENCY
[22]In the Delorie
application the main ground of urgency advanced is the fact that the
second applicant is separated from his wife
and children. It is
contended on behalf of the applicants in the Delorie application that
this is a serious matter which fundamentally
violates the second
applicant’s dignity and that of his wife and children. In
relying on this ground as the basis of urgency,
reliance is place in
Dawood, Shalabi & Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA
936
(CC) para 51 at p968 where the Constitutional Court made the
following observation:
“Enforced
separation places strain on any relationship. That strain may be
particularly grave where spouses are indigent and
not in a position
to afford international travel, or where there are children born of
the marriage. Indeed, it may well be that
the enforced separation of
the couple could destroy the marriage relationship altogether.
Although these provisions do not deprive
spouses entirely of the
rights to marry and form a family, they nevertheless constitute a
significant limitation of the right.”
[23]It is further
contended on behalf of the applicants in the Delorie application that
the family is dependent on the second applicant’s
income, which
is in turn dependent on his ability to be in the country. She goes
on to state what steps were taken after her husband
was declared an
undesirable person, these being that on 2 June 2014 the second
applicant approached the High Commission in Zimbabwe
with a view to
being assisted, but could not be assisted in view of his “undesirable
person” status; that she approached
the department’s
offices in Cape Town but could not be assisted as the department was
in the process of establishing a new
office which would only be
operative after 20 June 2014; that she arranged to meet an
immigration attorney on 5 June 2014, but
could not meet the required
deposit whereafter an appointment was arranged for a consultation on
Thursday, 12 June 2014. It was
on 12 June 2014 that the first
applicant in the Delorie application was fortuitously referred to her
current legal representatives.
Once she had consulted with her
current legal representatives the proceedings in the Delorie
application were issued on Tuesday,
17 June 2014. The first
applicant further states in her founding affidavit that during the
currency of the previous legal regime,
a matter of renewal of a work
permit was a mere formality, hence the second applicant was lulled in
a false sense of security when,
although his work permit had expired
on 21 April 2014, he nonetheless believed that he could have it
renewed in Harare en route
his business trip to Nigeria.
[24] The reasons for
urgency advanced in the Johnson application is based on the fact that
the child born of the marriage between
the first and the second
applicant is so young, just little over two and half years old. He
cannot be separated from his mother
as she was forced to take him
with her to Denmark. It is thus contended on behalf of the
applicants in the Johnson application
that the three applicants’
family as well as the first and the second applicant’s marriage
have thus effectively been
broken up as a consequence of the second
applicant having been declared an undesirable person in circumstances
where, in the past,
she could live and enter the country purely on
the basis of proof of acknowledgement of her application to have her
visa renewed.
[25] As has already
been pointed out, the main thrust of the respondents’
opposition, in as far as the urgency aspect is concerned,
is based on
a contention that the applicants, in all instances, are the creators
of their own misery. The perception that the
applicants are the
creators of their own misery may well be so. But, in my view, what
also has to be borne in mind is the fact
that the declarations of
undesirability occurred shortly after the commencement of the
provisions of
section 30(1)(h)
of the
Immigration Act and
the
regulations promulgated thereunder. In my view, therefore, the
relief sought by the applicants in both applications, due regard
had
to the underlying circumstances under which the permit violations
occurred, is not the kind of relief that can be attained
by way of an
action in due course. The applications are, therefore, urgent.
[26]In concluding
that the applications are urgent, I have taken into account the
children’s best interests, which are of
paramount importance in
every matter that concerns the child over and above the interests of
the litigants, including those of
the respondents. The children, in
the instance of both matters before me, find themselves being caught
up in a web of contestation
that has manifested between the other
applicants and the respondents.
JURISDICTION
[27]The opposition
to the relief sought, based on lack of jurisdiction on the part of
this court, is based on a contention that
the promulgation of the
Immigration Regulations, as well as the passing of the amendment to
the
Immigration Act, in
the form of addition of a further
sub-paragraph, it being sub-paragraph (h), constitute executive acts
by the President-in-Cabinet
and the Minister of Home Affairs. It is
further contended that the President-in-Cabinet and the Minister of
Home Affairs have
their principal offices in Tshwane. In view
thereof, so it is contended on behalf of the respondents, these
proceedings ought
to have been instituted in a court where the
principal offices of the President-in-Cabinet and the Minister of
Home Affairs are
situated.
[28]A matter of a
challenge to the validity of the promulgation of Immigration
Regulations as well as an amendment to the
Immigration Act, are
both
matters in respect of which the relief is sought in Part B of the
parties’ respective notices of motion. Those issues,
and all
those other several issues, set out in Part B of the parties’
respective notices of motion are not before me for
determination at
this stage of the proceedings
[29]Further, the
National Executive, as all of us have come to know, has two principal
places of business, one in Tshwane and one
in Cape Town. When
Parliament is in recess, meetings of the National Executive would in
all circumstances be held in Tshwane,
but that when the parliament is
in session, such meetings would be held in Cape Town. The last such
meeting of the National Executive
was held in Cape Town on Wednesday,
25 June 2014. Accordingly, this court would have jurisdiction on
the members of the National
Executive by virtue of the provisions of
section 21(1)
of the
Superior Courts Act, 10 of 2013
.
[30] It further
appears to be accepted between the parties that the declaration of
persons as “undesirable persons”
constitutes
administrative action as contemplated in
section 1
of the
Promotion
of Administrative Justice Act, 3 of 2000
. In the instance of the
Johnson application, the administrative action complained of occurred
at the Cape Town International Airport
and thus within the area of
jurisdiction of this court. In the instance of the Delorie
application, the administrative action
complained of occurred at the
OR Tambo International Airport, Johannesburg.
[31] If it is
accepted that the declaration of a person as undesirable constitutes
administrative action, it therefore would mean
that the provisions of
the Promotion of Administrative Justice Act do apply. These
proceedings have been instituted in the high
court. A high court
is defined as follows in the Promotion of Administration of Justice
Act:
“(a) …
(b)(i) a High
Court or another Court of similar status;
(ii)within whose
area of jurisdiction the administrative action occurred or the
administrator has his or its principal place of
administration or the
party whose rights have been affected is domiciled or ordinarily
resident or the adverse effects of the administrative
action was, is
or will be experienced.”
[32] In the instance
of the Delorie application, the applicants are all domiciled and
ordinarily resident in Rondebosch, Cape Town
and thus within the area
of jurisdiction of this court. Moreover, the adverse effects of the
declaration of undesirability in
both instances are felt and
experienced in Cape Town. Thus, this court does have jurisdiction
to hear this application and to
make a determination on the relief
sought.
[33]Trollip JA in
Estate Agents’ Board v Lek
1979 (3) SA 1048
(AD) at 1067D-F
made the following observation:
“Having due
regard to that fact that I think that the court a quo had
jurisdiction to entertain his appeal, simply on the
ground that he
was resident within its area of jurisdiction. After all, that was the
court immediately at hand and easily accessible
to him and to which
he would naturally turn for aid in seeking to have the dimunition in
his legal capacity or personality remedied.
In the present context
our unitary judicial system of having one Supreme Court (currently
one High Court) with different divisions,
… convenience and
common sense, are, inter alia, valid considerations in determining
whether a particular division has jurisdiction
to hear and determine
the particular coure.”
[34]In National Arts
Council v The Minister of Arts & Culture
2006 (1) SA 215
(C) I
held that this court has no jurisdiction over the National Arts
Council on the basis that the decision that was sought to
be impugned
was communicated to the National Arts Council from Tshwane; that the
offices of the National Council are situate in
Johannesburg; that the
physical address of the National Arts Council depicted on its
letterhead is an address in Johannesburg;
and that its postal address
is in Newtown, Johannesburg.
[35]In my view, as
Trollip AJ observed in Estate Agents’ Board v Lek, supra,
convenience and common sense are valid considerations
in determining
that this court does have jurisdiction to adjudicate on the relief
sought. I am thus not persuaded that this court
lacks jurisdiction
purely on the basis that the National Executive has its principal
offices in Tshwane. In any event, the respondents
have admitted in
the pleadings that the National Executive does have a principal place
of business in Cape Town. This then brings
me to a determination
whether the applicants have made out a case for the relief sought.
THE REQUIREMENTS
FOR AN INTERIM RELIEF
[36]The requirements
for an interim interdict, and thus for an interim relief at this
stage of the proceedings, are well established
in our law. In an
application for an interim interdictory relief the applicant must
establish a prima facie right to the relief
sought even if such
relief may be open to some doubt; a well-grounded apprehension of
irreparable harm if the interim relief is
not granted, and the
ultimate relief is eventually granted; that the balance of
convenience favour the granting of the interim
relief; and the
absence of any other satisfactory remedy available to the applicant.
[37]It has been held
in authorities such as Olympic Passenger Services (Pty) Limited v
Ramlagan
1957 (2) SA 382
(D) at 383E-F that the requirements referred
to should not be considered separately or in isolation but in
conjunction with one
another in order to determine whether the court
should exercise its discretion in favour of the grant of the interim
relief sought.
At the interim stage, less is required from the
applicants than at the final interdict stage. It is sufficient for
the applicants
to show a prima facie case though open to some doubt.
[38]As has already
been pointed out elsewhere in this judgment, and in line with the
approach adopted by the Constitutional Court
in National Treasury &
Others v Opposition to Urban Tolling Alliance & Others
2012 (6)
SA 223
(CC) at paragraph 44, a need for the applicants to make a
prima facie case does not require me to decide the prospects of
success
on the proposed judicial review at the interim stage. All
that I need to determine at this stage of the proceedings is that the
relief sought is not sought on frivolous grounds.
PRIMA FACIE
RIGHTS
[39]Over and above
the right to family life and the right to dignity incidental thereto,
the prima facie right asserted by the applicants
is based on the
right to challenge the lawfulness of the regulations; the alleged
unlawfulness of Directive 9 of 2014: and, ultimately,
the alleged
unlawfulness of declaring the applicants to be undesirable persons as
contemplated in
section 30
of the
Immigration Act.
[40]The
point that
is being made on behalf of the applicants in the Johnson application
is that
Regulation 27
, which regulates the declaration of persons as
undesirable persons, is ultra vires the
Immigration Act, in
that,
whereas the
Immigration Act and
regulation 27(2)
of the regulations
promulgated thereunder, is permissive in its provision for the
declaration of a person as undesirable, the interpretation
and the
application of that regulation, in the form of Directive 9 of 2014,
appears to be peremptory. It is further contended
on behalf of the
applicants in the Johnson application that the officials at Cape Town
International Airport, who issued the affected
person with the
declaration of undesirability, did not exercise their discretion
properly.
[41] In the instance
of the Delorie application it is contended that the decision to
declare the second respondent in that application
an undesirable
person falls to be set aside on several grounds, these being, that
the decision is premised on the validity of the
regulations and/or
directive whose validity is sought to be challenged; that the
departmental officials who issued the declaration
failed to
appreciate that they were required to exercise a discretion; that the
officials failed to consider all relevant factors;
that the
determination of undesirability is not rationally connected to the
purpose of
section 30(1)(h)
of the
Immigration Act; that
the
procedure followed was unfair; and, that the declaration does not
accord with the regulations in that it operates in perpetuity.
INTERNAL REMEDIES
[42]The notice of
undesirability refers to both an internal appeal to the
Director-General, in terms of
section 8(4)
of the
Immigration Act, or
waiver by the Minister, for good cause, in terms of
section 30(2)
of
the
Immigration Act. The
applicants in both these matters did not
lodge such appeals or applications either at the points of exit in
the Republic or in
their respective countries. However, at the
hearing of an application for a postponement of these proceedings on
18 June 2014,
the applicants were invited to lodge these appeals and
were assured that such appeals would be considered despite the period
within
which such appeals had to be lodged had expired.
[43]The affected
applicants, in both instances, have accepted such invitation and such
appeals have since been lodged with the officials
of the department.
However, no indication was given at the time the matter was argued
before me on Tuesday, 24 June 2014, as regards
how long it would take
for those appeals to be considered and for the results to be
communicated to the applicants. It is accordingly
my view that the
relief sought cannot be refused solely on the basis that the
applicants have lodged such appeals in view of the
relief sought, in
both instances, in Part B of the parties’ respective notices of
motion. There also has been no tender
on the part of the respondents
for the applicants to return pending the consideration of such
internal appeals. To the extent
that it is suggested that the
applicants do have an alternative remedy in the form of the
provisions of
section 6(2)(g)
read with
section 6(3)
of the
Promotion of Administrative Justice Act, my
view is that those
options are not capable of a speedy remedy of the nature that the
applicants seek in these proceedings.
[44]The applicants
are plainly suffering prejudice and have no alternative remedy
available to them other than the relief sought
in the notice of
motion. The affected persons in both instances do not pose a threat
to the security of the country and, in fact,
no such threat is
alleged in the papers. Thus, the return of the affected applicants
to the country should pose no threat to any
person. Thus, in my view,
the balance of convenience plainly favours the granting of the relief
sought.
[45]In the course of
finalising the preparation of this judgment, I was informed by the
legal representatives in the Johnson application
that, in the
instance of Louise Henrikson Egedal-Johnson, the second applicant in
the Johnson application, the Minister has waived
her declaration as
an undesirable person. In view of such waiver, the relief to suspend
the second applicant’s declaration
as an undesirable person by
the third and the fourth respondent on 28 May 2014 is no longer
pursued.
[46]Because of the
interim nature of the relief I grant on the basis of the orders I
give hereunder, I do not deem it appropriate
to make any costs order
at this stage of the proceedings, rather, leaving it for
determination at the conclusion of the hearing
of those issues
specified in Part B of the parties’ respective notices of
motion.
[47]In the result,
therefore, the following orders are made:
[47.1] THE
JOHNSON APPLICATION
1) It is declared
that this matter is one of urgency and condonation for non-compliance
with the time periods prescribed by the
Uniform Rules of Court is
granted.
2) Pending the final
outcome of the application for the relief sought in Part B of the
notice of motion in this application:
2.1. Immigration
Department Directive 9 of 2014 issued on 24 May 2014 under the hand
of the second respondent’s delegee shall
be suspended vis a vis
the second applicant; and
2.2. The second
applicant be permitted forthwith to enter and remain in the Republic
of South Africa with the third applicant, subject
to reasonable terms
and conditions, as prescribed by the second respondent.
3) There shall be no
order as to costs at this stage of the proceedings same being left
for determination at the conclusion of those
issues specified in Part
B of the notice of motion.
[47.2] THE
DELORIE APPLICATION
1) It is declared
that this matter is one of urgency and condonation for non-compliance
with the time periods prescribed by the
Uniform Rules of Court is
granted.
2) Pending the
outcome of an appeal lodged with the Director-General in terms of
section 8(4)
of the
Immigration Act and/or
waiver by the Minister in
terms of
section 30(4)
, and, further, pending the final outcome of
the application for the relief sought in Part B of the notice of
motion in this application,
whichever event shall first occur:
2.1. Immigration
Department Directive 9 of 2014 issued on 24 May 2014 under the hand
of the second respondent’s delegee shall
be suspended vis a vis
the second applicant;
2.2. The second
applicant’
s 28
May 2014 declaration of undesirability by the
officials of the Department of Home Affairs shall be suspended; and
2.3. The second
applicant be permitted forthwith to enter and remain in the Republic
of South Africa, subject to reasonable terms
and conditions, as
prescribed by the second respondent.
3) There shall be no
order as to costs at this stage of the proceedings same being left
for determination at the conclusion of those
issues specified in Part
B of the notice of motion.
N J Yekiso
High Court Judge