Director-General, Department of Home Affairs and Others v Link and Others

• Jurisdiction: South Africa
• Citation: 2020 (2) SA 192 (WCC)

Director-General, Department of Home Affairs and Others v Link and Others
2020 (2) SA 192 (WCC)

2020 (2) SA p192

Citation	2020 (2) SA 192 (WCC)
Case No	A 324/18
Court	Western Cape Division, Cape Town
Judge	Goliath DJP, Gamble J and Sher J
Heard	October 17, 2019
Judgment	October 17, 2019
Counsel	K Pillay SA (with A Nacerodien) for the appellants.; First and second respondents in person.

Flynote : Sleutelwoorde

Immigration — Decisions — Decision materially and adversely affecting rights — Internal remedy of review or appeal — Individual dutied to exhaust internal remedy before approaching court only where decision accompanied by adequate reasons — Immigration Act 13 of 2002, s 8(4).

Headnote : Kopnota

First and second respondents, and third and fourth respondents, were married foreign citizens (see [3]). They applied for South African permanent residence, but the Department of Home Affairs failed to respond (see [4] – [5]). Ultimately, they wrote to the Director-General of the Department, and asked him to give his decision. He did not respond (see [5]).

Third and fourth respondents then obtained a court order that the Director-General consider their applications (see [6]). The Director-General ignored it (see [7]).

Third and fourth respondents thereupon obtained an order that the Director-General was in contempt, and directing him to make a decision on the applications (see [7]). First and second respondents similarly, after requesting the decisions by letter, and the Director-General not responding, obtained an order directing him to make the decisions (see [8]).

The Deputy Director-General now came to respond, and notified first and third respondents that he had refused their applications on the basis that they had not given him sufficient proof that they met the financial requirements. He gave no reasons supporting this assertion. (See [9] – [10].)

First and third respondents then asked the Deputy Director-General, by letter, for the reasons grounding the decision. He did not respond. (See [12] and [16].)

Meanwhile, the Director-General informed second and fourth respondents that he had declined their applications, and gave reasons. (See [16] – [17].)

First to fourth respondents then applied to the High Court to review the Director-General and Deputy Director-General's decisions refusing their applications for permanent residence (see [17]).

The Director-General and Deputy Director-General filed no answering affidavit, but did raise, by notice, that the respondents had not exhausted their internal remedy — a review or appeal under the Immigration Act 13 of 2002 — and accordingly that the High Court should dismiss their applications (see [19]).

The High Court found that there were exceptional circumstances present which exempted the respondents exhausting their internal remedies; reviewed the decisions; set them aside; concluded it was appropriate for it to make the decisions; and did so in the affirmative. It ordered the Director-General and Deputy Director-General to issue permanent-residence permits (see [20]).

Here the Director-General and Deputy Director-General appealed to the full bench of the High Court (see [1]).

It examined ss 8(3) and 8(4) of the Immigration Act. Those provide:

'(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

2020 (2) SA p193

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.'

The full bench held that a 'decision' in ss 8(4) was confined to a decision which materially and adversely affected a person's rights; that was communicated to the person; and accompanied by adequate reasons (see [43]).

Further, a person affected by a decision would only be dutied to internally review or appeal the decision, if the decision was accompanied by adequate reasons (see [46]).

However, if the Department failed to provide adequate reasons along with the decision, the affected person would need to request them; and only if the Department failed still to provide adequate reasons, would a court have grounds to exempt the person concerned from exhausting her internal remedies (see [47]).

In first and third respondents' cases, no reasons accompanied the Deputy Director-General's decisions declining the applications; third and fourth respondents had requested same, yet the Deputy Director-General had failed still to provide any adequate reasons at all (see [12], [16] and [35]).

Accordingly, ss 8(4)'s requirements before there could be an internal review or appeal, namely a decision accompanied by adequate reasons, were not met, and first and third respondents were unable to bring such review or appeal. This exempted them exhausting those remedies (see [48]).

As for second and fourth respondents, the Director-General refused their applications, but s 8 provided no internal review or appeal against the Director-General refusing an application for permanent residence (see [49] – [50]).

Accordingly the Director-General and Deputy Director-General's assertion, that the court a quo should not hear the matter because the respondents had failed to exhaust their internal remedies, was meritless (see [51]).

Moreover, even if this finding was wrong and domestic remedies available, exceptional circumstances were present which justified exemption from exhausting them (see [52] – [54], [57] – [59] and [61] – [62]).

Also, there were grounds for the court a quo not remitting the residence applications to the Director-General and Deputy Director-General for redecision, and which justified substituting its decision for theirs (see [68] – [69]).

Appeal dismissed (see [76]).

Cases cited

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891; [2002] ZACC 2): referred to

Commissioner, South African Police Service, and Others v Maimela and Another 2003 (5) SA 480 (T): referred to

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd and Others 2014 (5) SA 138 (CC) (2014 (3) BCLR 265; [2013] ZACC 48): referred to

2020 (2) SA p194

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): referred to

Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): referred to

Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239; [2012] ZASCA 115): referred to

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C) (2007 (4) BCLR 416; [2007] 1 All SA 97): referred to

Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC) (2009 (12) BCLR 1192; [2009] ZACC 23): applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): applied

Makate v Vodacom Ltd 2016 (4) SA 121 (CC) (2016 (6) BCLR 709; [2016] ZACC 13): referred to

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616; [2003] ZASCA 46): dictum in para [40] applied

Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) (2012 (10) BCLR 1017; [2012] ZACC 16): referred to

Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (2004 (2) BCLR 120; [2003] ZASCA 142): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): applied

Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) ([2006] 1 All SA 589; [2005] ZASCA 97): dictum in para [16] applied

Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA) (2001 (10) BCLR 1039): referred to

Refugee Appeal Board and Others v Mukungubila 2019 (3) SA 141 (SCA): referred to

SATAWU and Others v Moloto and Another NNO 2012 (6) SA 249 (CC) (2012 (11) BCLR 1177; [2012] ZACC 19): referred to

South African Police Service v Solidarity obo Barnard (Popcru as Amicus Curiae) 2014 (6) SA 123 (CC) (2014 (10) BCLR 1195; [2014] ZACC 23): referred to

Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) (2001 (2) BCLR 176; [2000] ZASCA 62): referred to

Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC) (2015 (10) BCLR 1199; [2015] ZACC 22): applied.

2020 (2) SA p195

Legislation cited

The Immigration Act 13 of 2002, ss 8(3) and 8(4): see Juta's Statutes of South Africa 2018/19 vol 7 at 4-43.

Case Information

K Pillay SC (with A Nacerodien) for the appellants.

First and second respondents in...