Everett v Minister of the Interior

• Jurisdiction: South Africa
• Judge: Fagan J and Lategan J
• Judgment Date: 18 June 1980
• Citation: 1981 (2) SA 453 (C)
• Court: Cape Provincial Division

Everett v Minister of the Interior
1981 (2) SA 453 (C)

1981 (2) SA p453

Citation	1981 (2) SA 453 (C)
Court	Cape Provincial Division
Judge	Fagan J and Lategan J
Heard	June 11, 1980; June 13, 1980
Judgment	June 18, 1980

Flynote : Sleutelwoorde

Immigration — Temporary residence permit — Cancellation of by Minister in B terms of s 8 (2) of the Aliens Act 1 of 1937 — Discretion granted to Minister thereby a quasi-judicial one — Audi alteram partem rule applicable — Semble: Where expedition is required, affected person can be given opportunity to present his case only after decision taken in order to persuade the Minister to change his mind.

Headnote : Kopnota

The discretion granted to the Minister of the Interior in terms of s 8 C (2) of the Aliens Act 1 of 1937 to cancel a temporary residence permit (before it has expired) is a quasi- judicial one and the audi alteram partem rule is applicable thereto.

Semble: Where expedition is required, it might be necessary not to give the affected person the opportunity of presenting his case (in terms of the audi alteram partem rule) prior to the decision, but only after. He thus obtains the opportunity of persuading the official to change his mind. D

Case Information

Application to set aside a decision of the respondent. The facts appear from the reasons for judgment.

D F Irish for the applicant.

J le F Pienaar for the respondent.

Cur adv vult. E

Postea (June 18). F

Judgment

Fagan, J.:

Applicant is a British citizen by birth, having been born at Kingston-on-Thames in England. During 1968 her parents and two sisters, comprising her immediate family, emigrated from England to Sout Africa. They were later granted permanent residence here. In May 1972 applicant entered South Africa at Beit Bridge. She travelled under a G British passport. A temporary permit to stay in this country was issued to her, subject to security in an amount of R650 being furnished, which was done.

Applicant remained on in South Africa. The temporary residence permit issued to her was extended from time to time to enable her to study. She obtained the degree of Bachelor of Arts as well as an Honours degree in H History at the University of Cape Town. She qualified as a school teacher. During 1979 and until 31 March 1980 she held temporary positions as a school teacher. Since the latter date she has been unemployed but has been seeking another teaching post. Applicant lives in a house which she owns in Observatory in Cape Town. She has a son of three and a half years. A South African citizen, Avrom Kenneth Goldberg, whom she first met in 1976, lives with her. She and Mr Goldberg became engaged to be married, entered into an antenuptial contract on 1 May 1980 and arranged to marry on 13 June

1981 (2) SA p454

Fagan J

1980. Applicant wishes to become a citizen and permanent resident of South Africa. She has no immediate family in England and does not wish to return there.

A On 13 November 1979 applicant applied to the Secretary of the Interior for an extension of her temporary residence permit. By letter dated 23 April 1980 she requested a further extension of one year, during which period she intended to make further representations to the Immigrants B Selection Board to grant her a permit for permanent residence. Applicant's letter in the post crossed a letter from the Secretary of the Interior dated 28 April 1980. Therein he informed her that her temporary residence permit had been extended finally until 8 July 1980; that application for further extensions would not be considered; that she was required to leave C the country on or before 8 July 1980; and that failure to do so would render her liable to prosecution in terms of the provisions of the Aliens Act 1 of 1937.

At approximately 4 pm on Tuesday, 10 June 1980, applicant was personally served a letter from the Secretary of the Interior. In terms of the D letter she was informed that the Minister of the Interior had, under the powers vested in him by s 8 (2) of the Aliens Act, ordered that the temporary residence permit stamped in British passport in terms of s 5 (1) of that Act, was withdrawn with immediate effect. She was further told that she was accordingly no longer entitled to reside in South Africa, and was ordered to leave the Republic on or before 11 June 1980.

E Applicant had received no prior notice of the Minister's intentions and knew of no reason for her immediate ejectment from South Africa. She at once contacted her attorney. He endeavoured to contact a member of the Department of the Interior at the Pretoria telephone number which appeared F on the letter from the Secretary of the Interior, but there was no reply. On Wednesday morning, 11 June 1980, applicant's attorney continued his endeavours to reach a responsible official in the Department. Eventually, at approximately 9.40 am, he was told that the signatory of the letter would not be available until after 10 am. He then spoke to the official G of the Department who had served the letter and was told that he had no discretion to grant any extension. The official undertook to inform the Secretary of the Interior of applicant's view that the notice given to her was unreasonable, and was given a telephone number where applicant's attorney could be contacted.

In the meantime applicant had ascertained that there were two flights H leaving from Johannesburg to London on Wednesday, 11 June 1980 - at 6 pm and at 6.45 pm respectively. The latest flight from Cape Town to Johannesburg which would enable her to connect with the overseas flights would leave Cape Town at 2.20 pm. To reach the airport at Cape Town in time she would have to leave the city area about an hour before departure time. The flights from Cape Town which would have enabled her to make the connection in Johannesburg, were already fully booked on Wednesday morning.

As a matter of urgency, applicant on Wednesday, 11 June 1980, at about 12.30 pm, brought this application before the Court. She asked

1981 (2) SA p455

Fagan J

that the notice withdrawing her temporary residence permit be set aside as it was contrary to natural justice in the sense that she had been afforded A no opportunity of making representations to respondent, whether prior to or subsequent to respondent's decision, and, in the alternative, as the notice was unreasonable. To afford respondent an opportunity to file answering affidavits, the matter was postponed to Friday, 13 June 1980. On Thursday afternoon an affidavit by the Deputy State...