Minister of Home Affairs and Others v Scalabrini Centre and Others

• Jurisdiction: South Africa
• Judgment Date: 27 September 2013
• Citation: 2013 (6) SA 421 (SCA)

Minister of Home Affairs and Others v Scalabrini Centre and Others
2013 (6) SA 421 (SCA)

2013 (6) SA p421

Citation	2013 (6) SA 421 (SCA)
Case No	735/12 & 360/13; [2013] ZASCA 134
Court	Supreme Court of Appeal
Judge	Nugent JA, Lewis JA, Theron JA, Wallis JA and Willis JA
Heard	September 3, 2013
Judgment	September 27, 2013
Counsel	MA Alberts SC (with G Papier and G Quixley) for the appellants.; S Budlender (with N Mayosi and J Bleazard) for the respondents.

Flynote : Sleutelwoorde B

Administrative law — Administrative action — What constitutes — Decision to close Refugee Reception Office — Such not administrative action, but rather policy decision — Refugees Act 130 of 1998, s 8(1). C

Administrative law — Administrative action — What constitutes — Requirement that decision be of an administrative nature — Whether decision is of such nature can be gauged by extent to which it is driven by considerations of executive policy.

Review — Grounds — Rationality — Executive decision — Whether rational relation D of decision to purpose of legislative provision — Factual inquiry involving measure of judgment.

Review — Grounds — Rationality — Process preceding decision — SCA endorsing high court's finding that failure to consult interested parties rendering decision unlawful. E

Headnote : Kopnota

This case concerns the Director-General of the Department of Home Affairs' closure of the Cape Town Refugee Reception Office in terms of s 8(1) of the Refugees Act 130 of 1998. The section provides that:

'The Director-General may establish as many Refugee F Reception Offices in the Republic as he or she, after consultation with the standing committee, regards as necessary for the purposes of this Act.'

The Scalabrini Centre challenged the decision in the Western Cape High Court which found for it. The Minister of Home Affairs thereafter appealed to the Supreme Court of Appeal (SCA).

The Scalabrini Centre had contended in the high court that the G Director-General's decision was unlawful because he had failed to comply with s 8(1) in making it. It asserted that s 8(1) required the Director-General to consult the standing committee for Refugee Affairs before making a decision to close a Refugee Reception Office, but that the Director-General had made the decision to close the office and only afterwards told the standing committee of it. (Paragraphs [38] – [41] at 432I – 433F.) H

The high court, in evaluating the contention, considered English cases on the nature of consultation. These cases had held, inter alia, that where a decision-maker made a decision and only afterwards engaged with the concerned parties, the decision-maker's engagement could not be regarded as true consultation. Ultimately it had concluded that there had been non-compliance with s 8(1)'s consultation requirement and that the I decision was thus unlawful. (Paragraph [42] at 433G.)

The SCA agreed that the principles derived from the English cases could be applied in this country, but noted that those cases had also said that a right to be consulted required only that the right-holder be given an adequate opportunity to exercise the right. Here, the right-holder, the standing committee, had not been denied that right; rather it had chosen not to assert J

2013 (6) SA p422

A it. That is, it had been aware of the situation but had made little or no contribution to the Director-General's decision. Accordingly the Director-General's decision was not impeachable on this ground. (Paragraphs [43] – [44] at 433H – 434D.)

The Scalabrini Centre's further argument in the high court had been that the Director-General's decision was administrative action and that it had fallen B short of the requirements of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). (Paragraph [45] at 434E.)

The high court had held that the decision was indeed administrative action and that it had been contrary to PAJA. (Paragraph [47] at 434G – H.)

The SCA disagreed. It noted that the high court had reasoned that the decision C adversely affected rights and that it was thus administrative action. The SCA held, though, that not all exercises of public power that adversely affected rights were administrative action and furthermore that the high court had failed to consider the requirement of such action that the decision involved be of an administrative nature. (Paragraphs [50] – [51] at 435C – E.)

Turning to this question it held that other fact-specific cases dealing with what was administrative action were unhelpful, but that guidance could be D obtained from cases concerning the separation of powers, where there had been consideration of the distinction between administrative and other forms of government action. These cases had stated that decisions heavily influenced by policy generally belonged in the domain of the executive and that they were to be deferred to by the courts. This, held the SCA, was a guide to what was administrative action and reviewable under PAJA: the E more a decision was driven by considerations of executive policy the further it moved from being reviewable under PAJA. (Paragraphs [54] and [57] at 436H – 437B and 438B – C.)

The SCA concluded that while the latter consideration was not the only factor relevant to whether conduct was administrative action, it was sufficient in this case: the decision of whether a Refugee Reception Office was necessary F to achieve the purposes of the Act was 'quintessentially one of policy', and a court, not in possession of the requisite information nor accountable to the electorate, could not take it. (Paragraph [58] at 438D – E.)

Returning to the findings of the high court, it had also held the Director-General's decision to be unlawful for contravening the principle of legality — this on two bases. The first was that there had been no objectively G rational relationship between the closure decision and the purpose of s 8(1). (Paragraphs [62] – [63] at 439D – E.)

The SCA held in this regard that the determination of whether a decision was rationally related to its purpose was a factual inquiry involving a measure of judgment. Here the facts fell short of showing the decision was irrational in the sense of it being arbitrary. (Paragraphs [65] – [66] at 439H – 440D.)

H The second basis on which the high court had found the Director-General's decision to contravene the principle of legality was the Director-General's failure to consult interested parties. (Paragraph [67] at 440E.)

The SCA held here that the process by which a decision was taken might be impeached for lacking rationality, and it agreed with the high court's I assessment of the process that had been followed. The high court had held that the purpose of the power to establish Refugee Reception Offices was to ensure that there were as many as were needed for the purposes of the Act; that the Director-General, in order to reach a conclusion as to whether there were sufficient offices, had to follow a process that was rationally connected to attaining the purpose; and that the Director-General could not achieve the purpose without obtaining the views of organisations J representing the interests of asylum seekers, where the asylum seekers'

2013 (6) SA p423

perspective was of obvious importance in reaching a rational conclusion on A whether a Refugee Reception Office was needed in Cape Town. The SCA accordingly held that the Director-General's failure to consult such organisations was irrational, and rendered his decision unlawful, and in need of setting aside. (Paragraphs [69] – [73] at 441D – 443B.)

But while the SCA agreed with the high court's finding on the decision and its B order that it be set aside, it disagreed with the high court's order that the office be reopened. It held on this that the fate of the office was for the Director-General and not for the court to decide; and that there had been insufficient information before the court for it to conclude that the order was capable of being complied with. It had also fallen short of the clarity required of a court order. The SCA substituted in its place an order allowing the Director-General time to consult with the interested parties before C deciding on the future of the office. (Paragraphs [73] – [74], [76] – [79] and [81] at 443B – D, 443H – 444D and 444G – I.)

Cases Considered

Annotations

Case law D

Southern Africa

410 Voortrekker Road Property Holdings CC v Minister of Home Affairs [2010] 4 All SA 414 (WCC): referred to

Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) ([2002] 4 All SA 138): referred to E

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): dictum in para [49] applied

Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667 (N): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others F 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC): dictum in para [36] applied

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): G referred to

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658; [1996] ZACC 10): referred to

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): referred to H

Grey's Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33): referred to

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