Breukel and Another v Department of Home Affairs and Another (21836/2021) [2022] ZAWCHC 43; [2022] 2 All SA 787 (WCC); 2023 (4) SA 583 (WCC) (23 March 2022)

Breukel and Another v Department of Home Affairs and Another (21836/2021) [2022] ZAWCHC 43; [2022] 2 All SA 787 (WCC); 2023 (4) SA 583 (WCC) (23 March 2022)

The court found that Ms Serrano was unlawfully detained in the inadmissible facility after being denied entry, as her passport was validly extended under Venezuelan law and she had taken all reasonable steps to confirm its acceptability. The conditions of her detention infringed her constitutional rights to dignity and freedom, and the respondents failed to make reasonable enquiries regarding her passport's validity. The court held that the applicants had established a prima facie right to interim relief, a reasonable apprehension of harm, and that the balance of convenience favoured their release and entry pending judicial review. The respondents' technical objections regarding urgency,...

Citation
[2022] ZAWCHC 43
Parties
Applicant: Claire Breukel; Applicant: Elisa Sofia Sain Serrano; Respondent: Department of Home Affairs; Respondent: Minister of Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 March 2022
Case Number
21836/2021
Procedural Posture
Urgent Application / Final Judgment Following Interim and Reconsideration Applications
Outcome
Application granted. The second applicant is permitted to enter and remain in South Africa pending judicial review. Respondents' application to strike out dismissed. Costs awarded against respondents.
Judges
Francis
Legal Topics
Immigration Act, Interim Interdict, Right to Dignity, Ministerial Review, Detention of Foreigners, Service and Notice Requirements
Administrative Law Civil Procedure Constitutional Law Immigration Act Interim Interdict Right to Dignity Ministerial Review Detention of Foreigners +1 more

Case Brief

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Parties

Claire Breukel

Applicant

Elisa Sofia Sain Serrano

Applicant

Department of Home Affairs

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Urgent Application / Final Judgment Following Interim and Reconsideration Applications

Legal Issues

  1. 1 Whether the detention of the second applicant in the inadmissible facility pending ministerial review was lawful.
  2. 2 Whether the applicants were entitled to interim relief permitting entry and residence in South Africa pending judicial review.
  3. 3 Whether the respondents complied with procedural requirements for service and notice in urgent applications.

Ratio Decidendi

The court found that Ms Serrano was unlawfully detained in the inadmissible facility after being denied entry, as her passport was validly extended under Venezuelan law and she had taken all reasonable steps to confirm its acceptability. The conditions of her detention infringed her constitutional rights to dignity and freedom, and the respondents failed to make reasonable enquiries regarding her passport's validity. The court held that the applicants had established a prima facie right to interim relief, a reasonable apprehension of harm, and that the balance of convenience favoured their release and entry pending judicial review. The respondents' technical objections regarding urgency,...

Court Disposition

Application granted. The second applicant is permitted to enter and remain in South Africa pending judicial review. Respondents' application to strike out dismissed. Costs awarded against respondents.

Orders

  • Condonation is granted to the respondents for the late filing of affidavits and supplementary note.
  • The respondents' application to strike out is dismissed.