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

• Jurisdiction: South Africa
• Citation: 2010 (4) SA 327 (CC)

Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae)
2010 (4) SA 327 (CC)

2010 (4) SA p327

Citation	2010 (4) SA 327 (CC)
Case No	CCT 53/2008
Court	Constitutional Court
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
Heard	March 3, 2009
Judgment	August 25, 2009
Counsel	V Soni SC (with S Yacoob) for the applicants; G Bofilatios for the respondents.

Flynote : Sleutelwoorde B

Administrative law — Administrative action — Review — Domestic remedies — Duty to exhaust internal remedies before instituting legal proceedings — C Requirement not absolute — Must not be used by administrators to frustrate efforts of aggrieved person or shield administrative process from judicial scrutiny — Court empowered to condone non-exhaustion of internal remedies in exceptional circumstances — What constitutes exceptional circumstances depending on facts and circumstances of case and nature of administrative action at issue — Court to consider availability, effectiveness D and adequacy of internal remedies — Promotion of Administrative Justice Act 3 of 2000, s 7(2)(c).

Administrative law — Administrative action — Review — Domestic remedies — Duty to exhaust internal remedies before instituting legal proceedings — Mere lapsing of time period for exercising internal remedy not on its own E satisfying duty to exhaust such remedies — Also not constituting exceptional circumstance — To allow such would undermine rationale and purpose of duty to exhaust internal remedies — Aggrieved party to take reasonable steps to exhaust internal remedies with view to obtaining administrative redress — Promotion of Administrative Justice Act 3 of 2000, s 7(2)(c). F

Immigration — Prohibited person — Declaration as — Reasons for decision — Prohibited person requesting reasons for purpose of review of decision — Letter informing prohibited person of decision, stating that investigation had revealed that he had previously fraudulently obtained South African identity documents and therefore did not qualify for permanent residence, and that he was a prohibited person who did not qualify for visas, G

2010 (4) SA p328

A admission to South Africa and temporary or permanent residence permits; that he was to be deported and was entitled to request Minister to review decision to deport him — Contents of letter clear and constituting adequate reasons for decision — Immigration Act 13 of 2000, s 29(1)(f).

Immigration — Prohibited person — Declaration as — Remedies — Priority — Aggrieved person to seek ministerial review before resorting to application for B judicial review — Immigration Act 13 of 2000, s 29(1)(f).

Headnote : Kopnota

The applicants, all Kenyans, had applied for South African identity documents. They were later informed by letters from Ms F of the third respondent, the Department of Home Affairs, dated 9 January 2007, that an investigation C had revealed that they had previously obtained South African identity documents by fraudulent means and therefore did not qualify for permanent residence after 1 July 2005; that, in terms of s 29(1)(f) of the Immigration Act 13 of 2002 (the Act), the first and second applicants were prohibited persons and did not qualify for visas, admission to South Africa and temporary or permanent residence permits; that they were to be D deported and they were entitled, under s 8 of the Act, to request the Minister to review the decision to deport them. On the advice of their attorney, the applicants, through their attorney, requested the Minister, the first respondent, to furnish them with reasons for the decision to withdraw or terminate their residence permits, for the purpose of a review application E in terms of s 5 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The third respondent wrote to the applicants' attorney on 7 February 2007, stating that the reasons for the decision had been adequately set out in the letters of 9 January 2007. The applicants, however, failed to submit a request to the Minister for a review of the decision within three days, as provided in s 8(1) of the Act. The applicants then applied to F a High Court for a review and the setting-aside of the decision to withdraw their permanent residence permits and status. The High Court held that the applicants, in failing to request the Minister to review the decision, 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, in terms of s 7(2)(c) of PAJA, to exempt the applicants from the obligation G to exhaust internal remedies. The application was dismissed. Applications for leave to appeal were refused by both the High Court and the Supreme Court of Appeal. In an application to the Constitutional Court for leave to appeal, the applicants contended 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 H applicants from meaningfully challenging that decision through internal review. They contended further that, having been informed that the time period to apply for a ministerial review had expired, the internal remedy was no longer available to them to proceed as they had intended. Accordingly, it was contended, to permit the respondents to rely on s 7(2) to non-suit them would be contrary to the spirit of the Constitution.

I Held, that the duty to exhaust internal remedies was a valuable and necessary requirement in our law. However, that requirement should not be rigidly imposed; nor should it be used by administrators to frustrate the efforts of an aggrieved person or to shield the administrative process from judicial scrutiny. PAJA recognised this need for flexibility, acknowledging in s 7(2)(c) that exceptional circumstances may require that a court condone J non-exhaustion of the internal process and proceed with judicial review

2010 (4) SA p329

nonetheless. Under s 7(2) of PAJA, the requirement that an individual A exhaust internal remedies was therefore not absolute. (Paragraph [38] at 343A - C.)

Held, further, that what constituted exceptional circumstances depended on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ B or where its pursuit would be futile, a court might permit a litigant to approach the court directly. So too where an internal appellate tribunal had developed a rigid policy which rendered exhaustion futile. (Paragraph [39] at 343C - D.)

Held, further, that judicial enforcement of the duty to exhaust internal remedies had, in giving content to the 'exceptional circumstances' exemption, to consider the availability, effectiveness and adequacy of the existing internal C remedies. (Paragraph [45] at 345B - C.)

Held, further, that, although the duty to exhaust deferred access to courts, it had to be emphasised that the mere lapsing of the time period for exercising an internal remedy would not on its own satisfy the duty to exhaust, nor would it constitute exceptional circumstances. Someone seeking to avoid D administrative redress would, if it were otherwise, simply wait out the specified time period and proceed to initiate judicial review. That interpretation would undermine the rationale and purpose of the duty. Thus, an aggrieved party must take reasonable steps to exhaust available internal remedies with a view to obtaining administrative redress. (Paragraph [47] at 345E - G.)

Held, further, that the applicants had been notified of the decision declaring them E prohibited persons in terms of s 29(1)(f) of the Act, and the appropriate response on their part at that stage was to request a ministerial review in terms of s 8(1) of the Act: s 8(1) required that the applicants request an administrative review before resorting to the courts. (Paragraphs [56] and [57] at 348B - D.)

Held, further, as to the applicants' contention that they had, in the letters of F 9 January 2007, been presented with a series of findings and conclusions of law, as opposed to reasons, which they were entitled to under s 5 of PAJA, that, although the reasons had to be sufficient, they did not have to be specified in minute detail, nor was it necessary to show how every relevant fact weighed in the ultimate finding. What constituted adequate reasons would therefore vary, depending on the circumstances of the particular G case. Ordinarily, reasons would be adequate if a complainant could make out a reasonably substantial case for a ministerial review or an appeal. (Paragraph [63] at 350B - C.)

Held, further, that the contents of the letters of 9 January 2007 were clear: the applicants were declared prohibited persons because they obtained their identity documents fraudulently. On that basis they had been declared H illegal immigrants. Simply put, their presence in the country was unlawful and they had to leave or be deported. Considered in the context of the earlier meeting where Ms F discussed the allegations of fraud against them, the basis for the withdrawal of their residence permits could not have been clearer. (Paragraph [66] at 351E - G.)

Held, accordingly, that the applicants' judicial review application had been I premature and that they were first required to exhaust the available ministerial review. (Paragraph [69] at 352B - C.)

Held, further, that the applicants had shown no exceptional circumstances as a basis for a claim to be exempted from exhausting the available internal remedy. Based on the information at their disposal, a meaningful review was thus well within their reach. There...