Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Nkabinde J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 25 August 2009
• Citation: 2010 (4) SA 327 (CC)
• Docket Number: CCT 53/2008
• Hearing Date: 03 March 2009
• Counsel: V Soni SC (with S Yacoob) for the applicants G Bofilatios for the respondents.
• Court: Constitutional Court

Mokgoro J: B

[1] This case arises from the withdrawal of residence permits that had been granted to non-South Africans. It raises questions about the right to just administrative action, more particularly about the circumstances C in which internal remedies must be exhausted before applications for judicial review can be made. In this matter, the applicants seek leave to appeal against the judgment of the North Gauteng High Court, Pretoria (the High Court), [1] dismissing their request for the review and setting aside of the decision by the Director-General of Home Affairs (the D second respondent) to withdraw or terminate their residence permits. The applicants also seek an order that the costs of their application in this court be costs in the appeal.

The parties

E [2] The first applicant is Mr Wycliffe Simiyu Koyabe, a Kenyan businessman. The second applicant is Ms Mary Kadenyi Koyabe, the first applicant's wife, who is also Kenyan. The first and second applicants currently reside in South Africa with their adult son, Mr Anthony Simiyu Koyabe, the third applicant in this matter, and their three other minor children.

F [3] The Minister for Home Affairs (the Minister) is the first respondent. The second respondent is the Director-General of Home Affairs (Director-General), and the third respondent the Department of Home Affairs (the Department).

G [4] Lawyers for Human Rights (the amicus curiae), a non-governmental organisation whose objective is the promotion and enforcement of human rights in South Africa, applied and were admitted as amicus curiae.

Background

H [5] The facts of this case are highly contested by the parties. The first applicant first came to South Africa in 1994 and obtained a work permit during his stay. In 1995 he married Ms Lindiwe Ngobese, a South African citizen. They divorced in 1996. After the divorce he applied to convert his work permit to an 'own-business work permit'. This I application was refused after Ms Ngobese revealed to the Department that her marriage to the first applicant had been one of convenience.

Mokgoro J

[6] While the first applicant's appeal against that decision was pending, A Mrs Willis, an 'immigration agent', informed him that he would qualify for permanent residence on the basis of an exemption under the legislation then in operation, the Aliens Control Act. [2] On 13 June 1997 the first applicant was granted the exemption and permanent residence, both of which were extended to the second applicant. B

[7] In 2001 Mrs Willis further advised the first and second applicants that they would qualify for South African citizenship. Both applicants successfully applied for naturalisation and, within the year, were issued with temporary identity certificates. However, on 11 October 2001 the applicants were arrested for being 'illegal aliens' on the basis of C irregularities discovered regarding their 1997 exemptions. They were later released, pending the outcome of criminal charges due to be laid against them. It is common cause that their naturalisation was fraudulently obtained. The first applicant attributes the fraud to an official in the Department of Home Affairs.

[8] The first applicant was again arrested for fraud in connection with D the 1997 exemptions. After investigations, no prosecution was initiated due to insufficient evidence.

[9] The applicants left South Africa between June and August 2002, doing so, they state, on the basis of assurances from an official within the E Department that they could make a fresh start on their return, should they apply to re-enter and stay in South Africa. The respondents' version is that the applicants were compelled to leave.

[10] In November 2002 the first applicant applied for and was granted permission to return to South Africa, which he did in January 2003. F Once in the country, he applied for a work permit, which was granted. He then converted his work permit to a business permit, thus enabling him to be self-employed. Although the first applicant claims he made full disclosure of complications regarding his previous immigration status to the Department, the respondents dispute that the disclosure was complete. G

[11] On 12 July 2005 the first applicant applied for permanent residence status for himself and his family in terms of s 27(c) of the Immigration Act [13] (the Act). Once the applicants had provided the Department, at its request, with an explanation regarding their previous immigration status, they were granted permanent residence permits in June 2006, and the H

Mokgoro J

A first applicant applied for 'green identity documents', issued to permanent residents and citizens. It was when he questioned the delay in the issuing of these documents that he was told that his application had been referred to Ms Sandra Franke, an official in the Department's investigation section.

B [12] As part of the investigation process, the first and second applicants met with Ms Franke. On the second occasion she gave each of them a letter dated 9 January 2007. These letters informed them, among other things, that an investigation had revealed that they had previously obtained South African identity documents by fraudulent means and C therefore did not qualify for permanent residence after 1 July 2005; in terms of s 29(1)(f) of the Act, [4] the first and second applicants were prohibited persons and did not qualify for visas, admission to South Africa and temporary or permanent residence permits; they were to be deported and they were entitled, under s 8 of the Act, [5] to request the D Minister to review the decision to deport them.

[13] Mr Koyabe's attorney accordingly advised him to submit a written request for a review of that decision under s 8(1) of the Act. [6] However, he further advised that in order to submit a meaningful request for review, it would be necessary to ascertain the reasons for the decision. E Mr Koyabe's attorney wrote to the Minister, requesting the reasons for the decision to withdraw or terminate their residence permits, for purposes of the review application, to which they were entitled in terms of s 5 [7] of the Promotion of Administrative Justice Act [8] (PAJA).

[14] Between 11 January and 6 February 2007 there was a flurry of F correspondence between the applicants' attorneys and the Department. Several letters by the applicants followed, requesting reasons for the decision to withdraw their residence permits.

[15] Ms Franke wrote to the applicants' attorneys on 7 February 2007 stating that the reasons for the decision were set out adequately in the letters of 9 January 2007. Taking this into consideration, it is clear G that from 7 February 2007, the applicants had had three days to submit a request for review, having been provided with all the required information. The applicants failed to do so and, therefore, Ms Franke argued, the applicants' right to a review by the Minister had lapsed.

Mokgoro J

[16] The applicants applied to the High Court for a review and the A setting aside of the Director-General's decision to withdraw their permanent residence permits and status. They also sought interim relief, pending the finalisation of the main relief sought.

In the High Court

[17] The respondents relied on the provisions of s 7(2)(a) of PAJA, [9] read B together with s 8 of the Act, which provides procedures for reviews and appeals. [10]

[18] It was common cause that the applicants had failed to make use of the review procedure set out in s 8(1) of the Act, 'mainly or purportedly' C for the reasons stated in the correspondence between them and Ms Franke. The High Court held that, based on Mr Koyabe's own allegations, all relevant facts were known to them, and that the respondents' letter of 9 January 2007 'contained no mystery at all'. The court furthermore found that the applicants and/or their attorneys were overly formalistic in insisting that the second and third respondents prove every allegation beyond a reasonable doubt before they were prepared to take D the necessary steps towards a review.

[19] The High Court held that the applicants had not exhausted their internal remedies as required by s 7(2)(a) of PAJA, and concluded that there were no exceptional circumstances that would allow it to exempt E the applicants from the obligation to exhaust internal remedies. [11] The court accordingly held that the applicants should first exhaust their internal remedy under s 8 of the Act, as required by s 7(2)(b) of PAJA, [12] and dismissed their application with costs.

[20] The applicants sought and were denied leave to appeal in both the High Court and the Supreme Court of Appeal. F

In this court

[21] The applicants submit that their application for leave to appeal raises questions regarding the ambit of the right to just administrative G

Mokgoro J

A action, protected under s 33(2) of the Constitution, [13] and given effect to in s 5 of PAJA. [14] They claim that it further raises questions about the interpretation of s 7(2) of PAJA, in the light of the right of access to courts guaranteed in s 34 of the Constitution. [15] They argue that the High Court failed to consider important factors necessary for a constitutional B interpretation of s 7(2) of PAJA. Specifically, they submit that they had intended to exhaust their internal remedy as required by s 7(2), but the respondents' refusal to provide reasons for withdrawing the residence permits precluded the applicants from meaningfully challenging that decision through internal review. Having been informed that the time C period to apply for a ministerial review had expired, the internal remedy, they submit, was no longer available to them to proceed as they had intended. Accordingly, they argue, to permit the respondents to rely on s 7(2) to...