Kuhudzai and Another v Minister of Home Affairs (11034/16) [2018] ZAWCHC 103 (24 August 2018)

Kuhudzai and Another v Minister of Home Affairs (11034/16) [2018] ZAWCHC 103 (24 August 2018)

The court found that the Minister of Home Affairs failed to properly exercise his discretion under s 31(2)(b) and (c) of the Immigration Act by applying a blanket policy that no exemption would be granted to foreigners seeking permanent residence for the purpose of practising law, without considering the applicants' individual circumstances. The Minister's decision was not rationally connected to the purpose of the Act or the information before him, as he ignored relevant facts such as the first applicant's long lawful residence and meritorious achievements. The court held that the decision was irrational and unlawful under PAJA and must be set aside. The proper remedy was remittal to the...

Citation
[2018] ZAWCHC 103
Parties
Applicant: Aleck Tapiwa Kuhudzai; Applicant: Paidamwoyo Memory Makoni; Respondent: Minister of Home Affairs
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
11034/16
Procedural Posture
Review Application / Judgment After Hearing and Further Submissions
Outcome
Application succeeded. Minister's decision set aside and matter remitted for reconsideration. Costs awarded to applicants.
Judges
Sher
Legal Topics
Immigration Act Exemption, Ministerial Discretion, Irrationality Review, Policy Fettering Discretion, Paja Review, Costs Award Pro Bono
Administrative Law Civil Procedure Immigration Act Exemption Ministerial Discretion Irrationality Review Policy Fettering Discretion Paja Review Costs Award Pro Bono

Case Brief

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Parties

Aleck Tapiwa Kuhudzai

Applicant

Paidamwoyo Memory Makoni

Applicant

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment After Hearing and Further Submissions

Legal Issues

  1. 1 Whether the Minister of Home Affairs' refusal to grant permanent residence by exemption under s 31(2)(b) and (c) of the Immigration Act was lawful and rational.
  2. 2 Whether the Minister improperly fettered his discretion by applying a blanket policy without considering the applicants' individual circumstances.
  3. 3 Whether the Minister's decision was rationally connected to the purpose and information before him.

Ratio Decidendi

The court found that the Minister of Home Affairs failed to properly exercise his discretion under s 31(2)(b) and (c) of the Immigration Act by applying a blanket policy that no exemption would be granted to foreigners seeking permanent residence for the purpose of practising law, without considering the applicants' individual circumstances. The Minister's decision was not rationally connected to the purpose of the Act or the information before him, as he ignored relevant facts such as the first applicant's long lawful residence and meritorious achievements. The court held that the decision was irrational and unlawful under PAJA and must be set aside. The proper remedy was remittal to the...

Court Disposition

Application succeeded. Minister's decision set aside and matter remitted for reconsideration. Costs awarded to applicants.

Orders

  • The Minister's decision dated 10 August 2016 refusing the first applicant's application for permanent residence by exemption is set aside and remitted for reconsideration within 60 calendar days.
  • The Minister is directed to consider the second applicant's application for permanent residence by exemption and render a decision within 60 calendar days, together with the decision on the first applicant.