Havard and Another v Minister of Home Affairs and Others (33431/2011) [2011] ZAGPJHC 245 (30 September 2011)

Havard and Another v Minister of Home Affairs and Others (33431/2011) [2011] ZAGPJHC 245 (30 September 2011)

The court held that the applicant was required by law to exhaust the internal remedy of review to the Minister under section 8(2)(a) of the Immigration Act before seeking judicial review of the decision declaring him an illegal foreigner. No exceptional circumstances were shown to justify exemption from this requirement under section 7(2)(c) of PAJA. The applicant's version was found to be vague, contradictory, and unsupported by credible evidence, with indications of fraudulent travel documents and unexplained discrepancies. The court found that the applicant's approach to court was premature and barred by statute, and that the facts and arguments advanced did not establish any...

Citation
[2011] ZAGPJHC 245
Parties
Applicant: Xaiomei Havard; Applicant: Hailin Cai; Respondent: Minister of Home Affairs; Respondent: Immigration Officer in charge of OR Tambo International Airport Deportation Cells; Respondent: Minister of Transport; Respondent: Director General, Department of Home Affairs; Respondent: Airport Company of South Africa; Respondent: Emirate Airlines; Respondent: Analytical Risk Management International
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 September 2011
Case Number
33431/2011
Procedural Posture
Urgent Application / Application for Urgent Interdict and Judicial Review
Outcome
Application dismissed with costs.
Judges
W L Wepener
Legal Topics
Immigration Act, Exhaustion of Internal Remedies, Judicial Review, Illegal Foreigner, Urgent Interdict
Administrative Law Civil Procedure Immigration Act Exhaustion of Internal Remedies Judicial Review Illegal Foreigner Urgent Interdict

Case Brief

Summary, issues, holding and outcome

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Parties

Xaiomei Havard

Applicant

Hailin Cai

Applicant

Minister of Home Affairs

Respondent

Immigration Officer in charge of OR Tambo International Airport Deportation Cells

Respondent

Minister of Transport

Respondent

Director General, Department of Home Affairs

Respondent

Airport Company of South Africa

Respondent

Emirate Airlines

Respondent

Analytical Risk Management International

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict and Judicial Review

Legal Issues

  1. 1 Whether the applicant may seek judicial review of the decision declaring him an illegal foreigner before exhausting internal remedies under section 8(2)(a) of the Immigration Act.
  2. 2 Whether exceptional circumstances exist to exempt the applicant from exhausting internal remedies before approaching the court.
  3. 3 Whether the applicant's detention and refusal of entry were lawful under the Immigration Act.

Ratio Decidendi

The court held that the applicant was required by law to exhaust the internal remedy of review to the Minister under section 8(2)(a) of the Immigration Act before seeking judicial review of the decision declaring him an illegal foreigner. No exceptional circumstances were shown to justify exemption from this requirement under section 7(2)(c) of PAJA. The applicant's version was found to be vague, contradictory, and unsupported by credible evidence, with indications of fraudulent travel documents and unexplained discrepancies. The court found that the applicant's approach to court was premature and barred by statute, and that the facts and arguments advanced did not establish any...

Court Disposition

Application dismissed with costs.

Orders

  • The applicant must first exhaust his internal remedy of review to the Minister of Home Affairs before instituting proceedings in court.
  • The application is dismissed with costs.