Foulds v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Citation: 1996 (4) SA 137 (W)

Foulds v Minister of Home Affairs and Others
1996 (4) SA 137 (W)

1996 (4) SA p137

Citation	1996 (4) SA 137 (W)
Case No	96/8037
Court	Witwatersrand Local Division
Judge	Streicher J
Heard	June 12, 1996
Judgment	July 12, 1996
Counsel	P M Kennedy for the applicant.; F H de Waal for the first and second respondents.

Flynote : Sleutelwoorde H

Immigration — Aliens — Permanent residence permit in terms of s 25 of Aliens Control Act 96 of 1991 — I Application for — Discretionary power of Immigrants Selection Board in terms of s 25(4) of Act — Provision in s 25(4) that Board may in certain circumstances not authorise issue of permit, doing no more than providing that discretion not fettered in any way other than that prescribed — J

1996 (4) SA p138

A Recognition of applicant's legitimate expectation of being informed of prejudicial information submitted to Board before adverse decision taken not fettering Board's discretion — Board can still, after giving applicant opportunity to respond to such prejudicial information, decide in exercise of its discretion whether or not to authorise issue of permit — Presence of discretionary power not B precluding application of rules of natural justice.

Immigration — Aliens — Permanent residence permit in terms of s 25 of Aliens Control Act 96 of 1991 — Application for — Discretionary power of Immigrants Selection Board in terms of s 25(4) of Act — Information adverse to applicant in C possession of Board — Act not expressly or by implication providing that applicant not entitled to be informed of adverse information and not to be afforded opportunity of replying thereto — Board expected to exercise its discretion to grant or refuse application only after proper consideration thereof — D Such requiring, where possible, that response of applicant to adverse information be obtained — Same applying to adverse policy considerations.

Headnote : Kopnota

By providing in s 25(4) of the Aliens Control Act 96 of 1991 that the granting or withholding of an authority to issue a permit for the purpose of permanent residence would be entirely in the discretion of the Immigrants Selection Board, provided that the Board may in certain prescribed circumstances not authorise the issue of a permit, the E Legislature did no more than to provide that the discretion was not fettered in any way other than prescribed, ie it was, subject to the proviso, for the Board to decide when a permit should be authorised and when not. The recognition of a legitimate expectation to be informed of prejudicial information submitted to the Board before an adverse decision is taken in no way fetters that discretion, and the Board can still, after having given the applicant an opportunity to respond to such prejudicial information, F entirely within its discretion, subject to the proviso, decide whether or not to authorise the issue of a permit for permanent residence. '(T)he presence of discretionary power does not preclude the application of the rules of natural justice; to require that the Minister can, in the exercise of his power, observe the rules of natural justice, involves no encroachment upon the breadth of his discretionary power to refuse or grant permanent residence. Instead, it merely ensures a due observance of long-established patterns of procedure.' (At 145A-E.)

G The dictum in Chandra v Minister of Immigration (1978) 2 NZLR 559 (SC) approved and applied.

The Aliens Control Act, 1991, does not expressly or by implication provide that an applicant for a permanent residence permit would not be entitled to be informed of adverse information and that he would not be afforded an opportunity of replying to such adverse information. The Act establishes an Immigrants Selection Board and H requires that application be made on a prescribed form containing the information for which provision is made in the form. It requires the Director-General to furnish such information as the Board may require in connection with the applicant to the Board. It enjoins the Board not to grant the application in certain circumstances. The Board is clearly expected to exercise its discretion to grant or refuse the application only after proper consideration of the application. Proper consideration of an application where I adverse information has been obtained from sources other than the applicant requires that, if possible under the circumstances, the response of the applicant be obtained in respect of the adverse information. The same applies in regard to adverse policy considerations. (At 148G/H-149A/B.)

In the present case the Court held that the applicant had a reasonable and legitimate expectation that the Board would properly and fairly consider his application for a permanent residence permit and give him an opportunity of dealing with certain information adverse to the applicant which the Board had obtained and with adverse J policy considerations, insofar as there were no special circumstances justifying the

1996 (4) SA p139

A non-disclosure of such information and policy considerations. As the Board had failed to make such disclosure, its decision to refuse to authorise the issue of a permenant residence permit had been fatally flawed and had to be set aside. (At 149H-150B), paraphrased.)

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Administrator, Cape, and Another v Ikapa Town Council 1990 (2) SA 882 (A)

Administrator, Natal, and Another v Sibiya and Another 1992 (4) SA 532 (A)

B Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A)

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A)

Chandra v Minister of Immigration (1978) 2 NZLR 559 (SC)

Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER 935 (HL)

Daganayasi v Minister of Immigration (1980) 2 NZLR 130 (CA)

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

Re HK (an Infant) [1967] 2 QB 617 (QB) (also reported sub nom Re K(H) (an Infant) [1967] 1 All ER 226)

Kioa and Others v Minister for Immigration and Ethnic Affairs and Another (1985) 62 ALR 321 (HC)

Naidenhov v Minister of Home Affairs and Others 1995 (7) BCLR 891 (T)

Parekh v Minister of Home Affairs and Another 1996 (2) SA 710 (D)

D Schmidt and Another v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA)

South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A)

Tseleng v Chairman, Unemployment Insurance Board, and Another 1995 (3) SA 162 (T)

Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 (FC)

Xu v Minister van Binnelandse Sake; Tsang v Minister van Binnelandse Sake 1995 (1) SA 185 (T)

E Zondi and Others v Administrator, Natal, and Others 1991 (3) SA 583 (A).

Statutes Considered

Statutes

The following statutes were considered by the Court:

The Aliens Control Act 96 of 1991, s 25: see Juta's Statutes of South Africa 1995 vol 5 at 2-14

The Constitution of the Republic of South Africa Act 200 of 1993, ss 24, 26: see Juta's Statutes of South Africa 1995 vol 5 at 1 - 212, 1 - 213.

Case Information

Application for the review and setting aside of a decision of the Immigrants Selection Board. The facts appear from the reasons for judgment. F

P M Kennedy for the applicant.

F H de Waal for the first and second respondents.

G No appearance for the third respondent (the chairperson of the Immigrants Selection Board).

Cur adv vult.

Postea (July 12).

Judgment

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.

1996 (4) SA p140

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...