Helen Suzman Foundation and Another v Minister of Home Affairs and Others [2023] ZAGPPHC 75; 32323/2022 (10 February 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

FLYNOTES: ZEP PERMIT AND INTERVENTION Civil procedure – Intervention – Direct and substantial interest – Main application on the Zimbabwe Exemption Permit – Truck Drivers Forum’s concerns regarding the regulation of truck drivers, and how it will deal with the effects in bargaining councils, prima facie constitute sufficient direct and substantial interest justifying its intervention – Uniform Rule 12.

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 32323/2022

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 10 FEBRUARY 2023

SIGNATURE

In the matter between:

HELEN SUZMAN FOUNDATION

First Applicant

CONSORTIUM FOR REFUGEES AND

MIGRANTS IN SOUTH AFRICA Second

Applicant

and

MINISTER OF HOME AFFAIRS First Respondent

DIRECTOR GENERAL OF HOME AFFAIRS Second Respondent

And

ALL TRUCK DRIVERS FORUM AND

ALLIED SOUTH AFRICA

First Intervening Party

OPERATION DUDULA

Second Intervening Party

Summary: civil procedure – applications for intervention – the main application is for the review of a set of decisions by a minister not to further extend exemption permits granted to Zimbabwean citizens in terms of the Immigration Act 13 of 2002 – leave to intervene as respondent granted to the All Truck Drivers Forum and Allied South Africa and a similar application for intervention by Operation Dudula was refused.

ORDER

1. The application by Operation Dudula to intervene in the main application is refused.

2. The application by All Truck Drivers Forum and Allied South Africa to intervene in the main application is granted and it is joined as the third respondent therein.

3. The aforementioned third respondent is directed to deliver any answering or supplementary affidavit that it may wish to deliver in the main application within 10 (ten) days from date of this order.

4. The costs of the third respondent’s application for intervention, shall be costs in the cause of the main application.

JUDGMENT

This matter has been heard in open court and is otherwise disposed of in terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

DAVIS, J

Introduction

[1] A review application of a number of alleged administrative acts taken by the Minister of Home Affairs (the Minister) together with two ancillary opposed applications have jointly been set down for hearing by a full court of this Division on 11 – 14 April 2023. Two voluntary associations, All Truck Drivers Forum and Allied South Africa (ATDFASA) and Operation Dudula (Dudula) seek leave to intervene in the review application (the main application).

The Nature of the Main Application

[2] The main application is one launched by the Helen Suzman Foundation (HSF) in case no 32323/2022. HSF has been joined by a second applicant, the Consortium for Refugees and Migrants in South Africa (CORMSA) as second applicant in terms of an order of this court of 16 September 2022.

[3] The Minister is the first respondent in the main application and the Director-General of the Department of Home Affairs (the DG) is the second respondent. The respondents oppose the main application, but only the DG has deposed to an answering affidavit.

[4] The relief claimed by the applicants is the following (in terms of HSF’s amended notice of motion):

“1 The First Respondent’s decision to terminate the Zimbabwean Exception Permit (ZEP), to grant a limited extension of ZEP’s of only 12 months, and to refuse further extensions beyond 30 June 2023, as communicated in:

1.1 The public notice to Zimbabwean national on 5 January 2022;

1.2 Directive 1 of 2021, published as GN 1666 in Government Gazette 45727 of 7 January 2020 (Directive 1 of 2021);

1.3 The First Respondent’s press statement on 7 January 2022; and

1.4 Directive 2 of 2022, published on 2 September 2022, and the accompanying press statement

is declared unlawful, unconstitutional, and invalid.

2. The First Respondent’s decision referred to in paragraph 1 is reviewed and set aside.

3. The mater is remitted back to the First Respondent for reconsideration, following a fair process that complies with the requirements of sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

4. Pending the conclusion of a fair process and the First Respondent’s further decision, it is directed that:

4.1 Existing ZEP’s shall be deemed to remain valid;

4.2 ZEP-holders will continue to enjoy the protections afforded by Immigration Directive 1 of 2021, namely that:

“1. No holder of the exemption may be arrested ordered to depart or be detained for purposes of deportation or deported in terms of the section 34 of the Immigration Act for any reasons related to him or her not having any valid exemption certificate (i.e permit label/sticker) in his or her passport. The holder of the exemption permit may not be dealt with in terms of section 29, 30, and 32 of the Immigration Act.

[1] United watch and Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C).

[2] Harms, Civil Procedure in the Supreme Court, Vol 2 B12.3.

[3] Wynn v divisional Commission of Police 1973 (2) SA 770 (E), Ex parte Beukes and Bekker [1998] 1 All SA 34 (LCC) at 41 – 43 and Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A).

[4] [2008] ZASCA 99; 2008 (6) SA 522 (SCA) at para 9.

[5] The Minister of Finance v Afri Business NCP 2022 (4) SA 362 (CC).

[6] Justice Nhlanhla Lebea v MEC for Public Works and Infrastructure, Free State (unreported) [2022] ZACC 40 (with reference to an analogous rule).

[7] Snyders & Others v De Jager 2017 (5) BCLR 604 (CC) 21 December 2016, para 9.

[8] Ex parte Moosa: in re Hassim v Harrop Allin (Pty) Ltd 1974 (4) SA 412 (T).

[9] This is a reference to Oudekraal Estate (Pty) Ltd v City of Cape Town 2010 (1) SA 333 (SCA) at para 26, which confirmed that an administrative act, event an alleged unlawful act, remains in existence and s capable of having legally valid consequences until it is set aside by a court.