Parekh v Minister of Home Affairs and Another

• Jurisdiction: South Africa
• Judge: Galgut J
• Judgment Date: 27 October 1995
• Citation: 1996 (2) SA 710 (D)
• Docket Number: 4409/95
• Hearing Date: 19 October 1995
• Counsel: S Gyanda for the applicant. C N Patel for the respondents.
• Court: Durban and Coast Local Division

D Galgut J:

The applicant is a national of India, and as such an alien. As a tourist he came to the Republic of South Africa in October 1991. He obtained employment and then applied in terms of the Aliens Control Act 96 of 1991 ('the Act') for a temporary residence permit for the purpose of working here. The validity of such permit was extended from time to time until 30 June 1994, beyond which date a E further extension was refused. In the meanwhile, and on 30 March 1994, the applicant had applied in terms of s 25 of the Act for a permanent residence permit. The application, which was made on the form prescribed therefor, was duly considered by the Immigrants Selection Board established in terms of s 24.

F On 10 April 1994 the applicant was handed the formal written notification that the board had refused his application. In line with standard practice, no reasons for the refusal were provided in the notification. The applicant adopted the stance, which he maintains in the instant application, that he was entitled to be given such reasons. On two occasions his attorneys wrote to the second respondent, the G Director-General of Home Affairs, demanding to be furnished with reasons. On 28 December 1994 a response was eventually sent to the applicant in which the second respondent confirmed that reasons for the refusal of applications for permanent residence permits are never provided, and that the applicant would therefore not be furnished with reasons.

H The applicant does not appear to have done anything more about the matter for more than five months until he launched the instant application, by way of urgency, on 15 June 1995. He then feared deportation, although he has at no stage disclosed why it was at that late stage for the first time that he feared such a possibility. He was nevertheless granted a rule calling on the respondents to show cause why they I should not be interdicted from executing any warrant in terms of the Act against him. He had also asked for an order compelling the furnishing of the reasons concerned, but because this relief was not urgent, it was not incorporated in the rule.

J I should stress immediately that the applicant nowhere suggests that the decision to refuse his application is liable to be taken on review in

Galgut J

A terms of the common law. On the contrary, he appears to accept that the application was properly and fairly considered. On what the applicant himself says, the real motive behind the relief sought was that the applicant intended to gain time in order to take steps, in terms of provisions of the Act to which I shall come, to have his application for a permanent residence permit reconsidered. He contends that he will be unable to do so unless and until the reasons are furnished for the B refusal of his application for a permanent residence permit. Despite the claim for the furnishing of reasons not having been abandoned, before me counsel for the applicant does not ask for an order compelling the furnishing of such reasons. It may be that this is simply an oversight. It makes no difference, however, because one C way or the other the issue before me remains whether the applicant is entitled to reasons.

In contending that he is, counsel for the applicant relies essentially on the provisions of s 24(c) of the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution'), which provides:

'24. Every person shall have the right to -

. . . .

(c)

be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public;

. . .'

E It will be seen from the section that it is only where the person concerned has any 'rights or interests' which have been affected by the administrative action that he or she will be entitled to the reasons concerned. What such...