Bihombel and Another v Minister of Home Affairs and Another (9940/2022) [2024] ZAWCHC 72 (6 March 2024)

Bihombel and Another v Minister of Home Affairs and Another (9940/2022) [2024] ZAWCHC 72 (6 March 2024)

The court found that the initial decisions by officials of the Department of Home Affairs declaring the applicants prohibited persons under section 29(1)(f) of the Immigration Act were administrative actions as defined by PAJA. These decisions were made without affording the applicants prior notice, a fair hearing, or adequate reasons, and without conducting a proper investigation into their alleged complicity in obtaining fraudulent documents. The applicants provided credible evidence of their innocence and lack of knowledge regarding the fraudulent nature of the documents. The Department failed to gather or present evidence of complicity and did not follow the procedural requirements...

Citation
[2024] ZAWCHC 72
Parties
Applicant: Noemie Lolinga Bihombel; Applicant: Tyson Likutu Makali; Respondent: The Minister of Home Affairs; Respondent: The Director-General of the Department of Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 March 2024
Case Number
9940/2022
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The decisions declaring the applicants prohibited persons are reviewed and set aside. The applicants are declared not to be prohibited persons under section 29(1)(f) of the Immigration Act. Costs awarded to the applicants.
Judges
Meer
Legal Topics
Promotion of Administrative Justice Act, Immigration Act Section 29, Procedural Fairness, Audi Alteram Partem, Declaratory Relief
Administrative Law Civil Procedure Promotion of Administrative Justice Act Immigration Act Section 29 Procedural Fairness Audi Alteram Partem Declaratory Relief

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Parties

Noemie Lolinga Bihombel

Applicant

Tyson Likutu Makali

Applicant

The Minister of Home Affairs

Respondent

The Director-General of the Department of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the decisions declaring the applicants prohibited persons under section 29(1)(f) of the Immigration Act constitute administrative actions under PAJA.
  2. 2 Whether the applicants were entitled to prior notice and a fair hearing before being declared prohibited persons.
  3. 3 Whether the Department provided adequate reasons and conducted a proper investigation before making the prohibition decisions.

Ratio Decidendi

The court found that the initial decisions by officials of the Department of Home Affairs declaring the applicants prohibited persons under section 29(1)(f) of the Immigration Act were administrative actions as defined by PAJA. These decisions were made without affording the applicants prior notice, a fair hearing, or adequate reasons, and without conducting a proper investigation into their alleged complicity in obtaining fraudulent documents. The applicants provided credible evidence of their innocence and lack of knowledge regarding the fraudulent nature of the documents. The Department failed to gather or present evidence of complicity and did not follow the procedural requirements...

Court Disposition

Application granted. The decisions declaring the applicants prohibited persons are reviewed and set aside. The applicants are declared not to be prohibited persons under section 29(1)(f) of the Immigration Act. Costs awarded to the applicants.

Orders

  • The decisions of officials declaring the First and Second Applicants prohibited persons under section 29(1)(f) of the Immigration Act are reviewed and set aside.
  • The Director-General's decisions rejecting the applicants' section 29(2) applications are reviewed and set aside.