Minister of Home Affairs and Others v Somali Association of South Africa and Another

JurisdictionSouth Africa
Citation2015 (3) SA 545 (SCA)

Minister of Home Affairs and Others v Somali Association of South Africa and Another
2015 (3) SA 545 (SCA)

2015 (3) SA p545


Citation

2015 (3) SA 545 (SCA)

Case No

831/2013
[2015] ZASCA 35

Court

Supreme Court of Appeal

Judge

Ponnan JA, Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA

Heard

February 16, 2015

Judgment

March 25, 2015

Counsel

MA Albertus SC (with GR Papier and GGM Quixley) for the appellants.
S Budlender
(with J Bleazard) for the respondents.

Flynote : Sleutelwoorde B

Review — Grounds — Rationality — Failure to consult with interested parties — Ignorance of material facts — Remedy. C

Headnote : Kopnota

In October 2011 the Director-General of the Department of Home Affairs took a decision to close the Port Elizabeth Refugee Reception Office to new applicants for asylum. This was in terms of s 8 of the Refugees Act 130 of 1998. In February 2012 that decision was set aside by the D Eastern Cape High Court (Pickering J) for non-compliance with the prerequisites of the section, with it ordering the office to be reopened to new applicants. Leave to appeal was refused and it was directed that the order not be suspended pending any further appeal. A petition for leave to appeal to the Supreme Court of Appeal was later refused. Nonetheless the office remained closed to new applicants. Then, in May 2012, the director-general took a second decision to close the office, now purportedly in compliance with s 8. This E caused the Somali Association of South Africa and the Project for Conflict Resolution and Development to again approach the Eastern Cape High Court which (per Eksteen J) set aside the second decision; ordered the office to be reopened to new applicants; and ordered the director-general to report to the Association and the Project on the progress of the reopening. The director-general, the Minister of Home Affairs and others then F appealed to the Supreme Court of Appeal. However, pending the appeal it came to light that the Department of Home Affairs appeared to be continuing to implement the first (unlawful) decision to close the office. (Paragraphs [6], [10] – [11], [30] and [32] at 551C – G, 553F – 554F, 568B – E and 569B – H.)

Held, that the director-general's decision — an executive action — did not comply G with the principle of legality. This was on the following bases:

(1)

The director-general failed to consult with interested parties who had special knowledge pertaining to the subject-matter of the decision (the Association and the Project), before making it (paras [14] and [17] at 555H – I and 558G – 559E); and

(2)

the director-general made his decision in ignorance of facts that were H material to it (a true estimate of when the replacement refugee reception office would open) (para [25] at 564G – 565F).

Accordingly the decision had to be set aside.

Held, further, as to the remedy, that instead of referring the matter back to the administrative body for reconsideration and fresh decision, the court would in this instance, owing to the authorities' intransigence, make the decision I itself. (Paragraph [32] at 568I – 569B.)

Ordered: The minister, director-general and chief director: asylum seeker management must restore services to the Port Elizabeth Refugee Reception Office specifically as they pertained to new applicants. The director-general must — in order to secure compliance with the order — report periodically to the Association and the Project on the progress in complying with it. The J

2015 (3) SA p546

A parties would be granted leave to apply to the High Court for further relief if need be. (Paragraphs [39] – [40] at 573D – 574A.) Appeal dismissed.

Cases Considered

Annotations

Case law

Southern Africa B

Byliefeldt v Redpath 1982 (1) SA 702 (A): referred to

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): referred to

Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) (2003 (2) BCLR 128; [2002] ZACC 28): referred to C

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd and Others [2013] 2 All SA 251 (SCA) ([2013] ZASCA 5): referred to

Dumani v Nair and Another 2013 (2) SA 274 (SCA): dictum in para [32] applied

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): referred to D

Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA): referred to

Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA): E followed

Kalil NO and Others v Mangaung Metropolitan Municipality and Others 2014 (5) SA 123 (SCA): dictum in para [30] applied

Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C) (2007 (4) BCLR 416; [2007] 1 All SA 97): referred to

Minister of Education, Western Cape, and Others v Governing Body, Mikro Primary School, and Another 2006 (1) SA 1 (SCA) ([2005] 3 All SA 436; 2005 (10) BCLR 973; [2005] ZASCA 66): referred to F

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15) (TAC No 2): referred to

Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (6) SA 421 (SCA): dictum in para [72] applied G

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) (2004 (8) BCLR 821; [2004] 3 All SA 169): referred to

Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) (2008 (9) BCLR 865; [2008] ZACC 8): referred to H

Occupiers of Mooiplaats v Golden Thread Ltd and Others 2012 (2) SA 337 (CC) ([2011] ZACC 35): referred to

Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) ([2003] 3 All SA 21; [2003] ZASCA 56): dictum in paras [47] – [48] applied I

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): dictum in para [85] applied

Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) J (2012 (4) BCLR 388; [2011] ZACC 34): referred to

2015 (3) SA p547

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others A 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): dictum in paras [40] – [43] applied

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) (2009 (9) BCLR 847; [2009] ZACC 16): referred to B

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) (2002 (2) SACR 499; 2002 (11) BCLR 1117; [2002] ZACC 22): dictum in para [21] applied

Scalabrini Centre and Others v Minister of Home Affairs and Others 2013 (3) SA 531 (WCC): dictum in para [110] approved C

Sibiya and Others v Director of Public Prosecutions, Johannesburg, and Others 2005 (5) SA 315 (CC) (2006 (1) SACR 220; 2005 (8) BCLR 812): dictum in paras [60] – [62] applied

Somali Association of South Africa v Minister of Home Affairs (ECP case No 3338/2012): upheld on appeal

Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA) ([2007] ZASCA 70): D referred to

Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (2007 (4) BCLR 339; [2006] ZACC 23): referred to.

England E

Hadkinson v Hadkinson [1952] 2 All ER 567 (CA): referred to

R v Secretary of State for Social Services, Ex Parte Association of Metropolitan Authorities [1986] 1 WLR 1 (QB) ([1986] 1 All ER 164): referred to

X Ltd v Morgan Grampian (Publishers) Ltd [1990] 2 All ER 1 (HL): referred to. F

Papua New Guinea

Re Prime Minister and National Executive Council Act 2002 Amendments and Reserve Powers of the Governor General [2012] PGSC 20: referred to.

Case Information

MA Albertus SC (with GR Papier and GGM Quixley) for the appellants. G

S Budlender (with J Bleazard) for the respondents.

An appeal from the Eastern Cape High Court, Port Elizabeth (Eksteen J).

Order H

Save for setting aside paras (2) and (3) of the order of the court below, and substituting them with the orders that follow, the appeal is dismissed with costs, to be paid by the first to third appellants jointly and severally, and to include the costs of two counsel. Paragraphs (2) and (3) are substituted with the following: I

'(2.1)

The first to third respondents are directed to restore by 1 July 2015 the refugee-reception services to the Port Elizabeth Refugee Reception Centre such that new applicants for asylum will be able to make applications in terms of s 21 of the Refugees Act 130 of 1998 and, if they qualify, be issued with permits in terms of s 22 of the said Act. J

2015 (3) SA p548

(2.2)

A The second respondent, the Director-General of the Department of Home Affairs, shall report in writing to the applicants not later than 15 April 2015 and, thereafter, on or before the 15th day of each succeeding month as to what steps have been taken and what progress has been made to ensure compliance with the aforesaid order.

(3)

B The parties are granted leave to apply upon the same papers, supplemented insofar as they consider that to be necessary, for further relief.'

Judgment

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and C Meyer AJA...

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13 practice notes
  • Minister of Home Affairs and Others v Saidi and Others
    • South Africa
    • Invalid date
    ...ZACC 26): dictum in paras [38] – [39] applied Minister of Home Affairs and Others v Somali Association of South Africa and Another E 2015 (3) SA 545 (SCA): referred Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictu......
  • Minister of Home Affairs and Others v Saidi and Others
    • South Africa
    • Supreme Court of Appeal
    • 30 March 2017
    ...ZACC 26): dictum in paras [38] – [39] applied Minister of Home Affairs and Others v Somali Association of South Africa and Another E 2015 (3) SA 545 (SCA): referred Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictu......
  • Procedural fairness, executive decision-making and the rule of law
    • South Africa
    • Juta South African Law Journal No. , November 2020
    • 27 November 2020
    ...content 49 Ibid para 70.50 Ibid para 72. S ee too Minister of Hom e Aairs & others v Soma li Association of South Afric a & another 2015 (3) SA 545 (SCA) para 17.51 Melanie Murc ott ‘Procedur al fair ness as a component of leg ality : Is a reconciliation between Albutt and Masetlh a possib......
  • Maleka v Health Professions Council of South Africa
    • South Africa
    • Gauteng Division, Pretoria
    • 10 July 2019
    ...[9] 2013 (2) SA 274 (SCA) at para [29] [10] Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 (3) SA 545 (SCA) [11] Section 2(d) of PAJA & Hira and Another v Booysen and Another 1992 (4) SA 69 (A) [12] Hoexter supra p 3-6 [13] Hoexter supra p 3-8 [14]......
  • Request a trial to view additional results
12 cases
  • Minister of Home Affairs and Others v Saidi and Others
    • South Africa
    • Invalid date
    ...ZACC 26): dictum in paras [38] – [39] applied Minister of Home Affairs and Others v Somali Association of South Africa and Another E 2015 (3) SA 545 (SCA): referred Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictu......
  • Minister of Home Affairs and Others v Saidi and Others
    • South Africa
    • Supreme Court of Appeal
    • 30 March 2017
    ...ZACC 26): dictum in paras [38] – [39] applied Minister of Home Affairs and Others v Somali Association of South Africa and Another E 2015 (3) SA 545 (SCA): referred Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictu......
  • Maleka v Health Professions Council of South Africa
    • South Africa
    • Gauteng Division, Pretoria
    • 10 July 2019
    ...[9] 2013 (2) SA 274 (SCA) at para [29] [10] Minister of Home Affairs and Others v Somali Association of South Africa and Another 2015 (3) SA 545 (SCA) [11] Section 2(d) of PAJA & Hira and Another v Booysen and Another 1992 (4) SA 69 (A) [12] Hoexter supra p 3-6 [13] Hoexter supra p 3-8 [14]......
  • Department of Transport v Tasima (Pty) Limited
    • South Africa
    • Constitutional Court
    • 17 July 2018
    ...Ltd 2010 (2) SA 289 (SCA) at para 22 and Minister of Home Affairs v Somali Association of South Africa Eastern Cape [2015] ZASCA 35; 2015 (3) SA 545 (SCA) at paras 35-6 where the following is "It is a most dangerous thing for a litigant, particularly a State department and senior officials ......
  • Request a trial to view additional results
1 books & journal articles
  • Procedural fairness, executive decision-making and the rule of law
    • South Africa
    • Juta South African Law Journal No. , November 2020
    • 27 November 2020
    ...content 49 Ibid para 70.50 Ibid para 72. S ee too Minister of Hom e Aairs & others v Soma li Association of South Afric a & another 2015 (3) SA 545 (SCA) para 17.51 Melanie Murc ott ‘Procedur al fair ness as a component of leg ality : Is a reconciliation between Albutt and Masetlh a possib......

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