Foulds v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Streicher J
• Court: Witwatersrand Local Division
• Citation: 1996 (4) SA 137 (W)
• Docket Number: 96/8037
• Counsel: P M Kennedy for the applicant. F H de Waal for the first and second respondents.
• Hearing Date: 12 June 1996

H Streicher J:

The applicant is a citizen of the United Kingdom. He applied for permanent resident status in terms of s 25 of the Aliens Control Act 96 of 1991 ('the Act'). His application was rejected by the Immigrants Selection Board ('the Board'), which refuses to give reasons for its decision.

The applicant now seeks an order reviewing and setting aside the decision of the I Board; directing the respondents to disclose to the applicant the reasons for the decision; and directing the respondents to take the necessary steps for the application for permanent resident status to be reconsidered in a lawful and fair manner, alternatively directing the respondents and/or the Board to issue the applicant with a J permanent residence permit.

Streicher J

A The applicant was previously, in 1982, granted permanent resident status by the South African immigration authorities. He lived and worked in this country until 1986 when he returned to the United Kingdom. Because of his absence from South Africa for more than five years, his permanent resident status lapsed.

The following facts are either common cause or not disputed. B

1.

The applicant has specialised knowledge in respect of electro- magnetic retarder technology. Retarders provide greater efficiency and safety in the braking systems of heavy vehicles such as trucks and buses as well as taxis. In 1993 the applicant was recruited by a South African company, C IMS Industrial Products (Pty) Ltd ('IMS') and offered the position of their products manager. IMS had recently acquired the franchise to import and distribute Telma retarders. In South Africa there are very few people who know anything about retarder technology. The applicant was granted a temporary residence permit which enabled him to work for IMS. The permit was extended from time to time. Approximately on 3 November D 1993 the applicant applied to the Department of Home Affairs for a permanent residence permit. On 8 November 1994 the applicant was advised that the Board had decided not to authorise the issue of a permit for permanent residence to him.

2.

E On 4 January 1995 the Southern African Bus Operators Association wrote to the Department that the applicant had been a member of their technical committee since the beginning of 1994, that he had made a valuable contribution to the industry by way of his technical experience and knowledge of European legislation and operations and that they were F looking forward to benefiting from his continuing involvement in the years to come.

3.

The Institute of Road Transport Engineers wrote to the Department on 9 January 1995:

'We are of the opinion that, in the specialised field of electromagnetic retarders, there are currently only one or two knowledgeable people in G South Africa and Mr Foulds is certainly one of the few individuals with a high level of expertise in this field.

We believe that the local transport industry would be all the poorer if Mr Foulds were not allowed to continue with his chosen career in South Africa, as his expert knowledge in this specific field of vehicle retarders and safety would be lost to the industry.' H

4.

While still at IMS the applicant established a firm, Retarder Technology, to provide an installation and maintenance facility for new and existing users of Telma electromagnetic retarders largely for IMS. During January 1995 the applicant was dismissed by IMS, who advanced his assistance in I establishing Retarder Technology as the reason for his dismissal. An application brought by the applicant against IMS for an order declaring that the dismissal constituted an unfair labour practice and for compensation is pending in the industrial court.

5.

After his dismissal the applicant became actively involved in Retarder J Technology on a full-time basis. On his departure from

Streicher J

A IMS the applicant advised the Department of his changed circumstances and applied for an extension of his temporary residence permit. On 10 August 1995 he was granted a temporary permit valid until 26 September 1995 'to take up self-employment'.

6.

The Board reconsidered the applicant's application for a permanent residence permit in August 1995 but decided not to rescind its previous B decision.

7.

In January 1996 an official of the Department of Trade and Industry advised the applicant's attorney that the Department of Trade and Industry fully supported the applicant's application for permanent residence. He subsequently confirmed that he had raised the matter with the relevant C officials of the Department of Home Affairs.

8.

The Board once again reconsidered the applicant's application for permanent residence in February 1996 but on 22 February 1996 finally decided to refuse the application.

9.

The Board had in its possession and relied on information which was D adverse to the applicant's application, which had not been disclosed to the applicant and in respect of which the applicant had not been given an opportunity to reply. Such information included adverse allegations by IMS against the applicant.

10.

The Board applied certain broad principles of policy which had not been E disclosed to the applicant.

11.

The applicant has not invested any funds in the business of Retarder Technology but has spent a considerable amount of effort in establishing and developing the business. Apart from the applicant, Retarder Technology employs two people but the applicant believes that at least F another 15 would be employed in a reasonably short time. In the first year of trading the sales turnover of Retarder Technology was approximately R256 000.

12.

If the applicant is required to leave South Africa it will effectively be the end of his business interests in South Africa. Because of the lack of people with the necessary expertise in South Africa there is no realistic hope of the G applicant selling the business for any substantial price. He has no prospect of finding suitable employment in the United Kingdom or anywhere else.

The applicant alleges that, in the light of the aforegoing facts, the decision not to grant him a permanent residence permit prejudicially affected or threatened his rights or at H least his legitimate expectations and that the respondents and the Board should have followed a fair procedure and have complied with the requirements of natural justice.

The first and second respondents deny that the applicant had any rights which could have been prejudically affected or threatened by the decision of the Board and that he I had a legitimate expectation as alleged. They furthermore deny that the audi alteram partem principle is applicable in the applicant's case, or that the respondents were obliged by requirements of fairness to inform the applicant of information submitted to the Board or to give the applicant an opportunity to reply thereto. They also deny that any of the applicant's rights or interests were affected and that they were obliged to J furnish reasons for the decision.

Streicher J

A In terms of the common law an individual whose liberty or property or existing rights are prejudicially affected by a decision of a public body or of an official empowered by statute to give such decision and also an individual who has a legitimate expectation that the decision by the public body would be favourable or, at least, that before an B adverse decision is taken he will be given a fair hearing, has a right to be heard before the decision is taken unless the statute provides otherwise. (See Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A) at 748F-G and 758D-E; Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) at 39G-J; South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) at 10G-I.)

C Section 24 of the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution') provides as follows:

'24 Every person shall have the right to -

(a)

lawful administrative action where any of his or her rights or interests is affected or threatened;

(b)

procedurally fair administrative action where any of his or her D rights or legitimate expectations is affected or threatened;

(c)

be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and

(d)

administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened.'

E It was not submitted that the applicant had a right to a permanent residence permit. It was submitted, although somewhat faintly, that the word 'affected' in s 24(b) should bear the meaning of 'determine' rather than 'deprive'. In my view, the matter can be decided without reliance on the provisions of s 24(b) and I intend doing so. I therefore F do not consider it necessary to decide what the correct interpretation of the section is.

The applicant submitted that he was prejudicially affected in his property in that the rejection of his application for permanent residence resulted in the loss of his business G and...