Masuku v Minister, Department of Home Affairs and Others [2020] ZAMPMBHC 4; 02/2020 (6 March 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION (MAIN SEAT)

CASE NO: 02/2020

In the matter between:

BINA MASUKU

Applicant

and

THE MINISTER, DEPARTMENT OF HOME AFFAIRS First Respondent

THE MINISTER, DEPARTMENT OF JUSTICE Second Respondent

AND CORRECTIONAL SERVICES

JUDGMENT

Roelofse AJ:

[1] On 9 January 2020, the applicant approached this court on an urgent basis. I dismissed the urgent application on its merits. I delivered an ex tempore judgment mainly because the applicant’s bail application was to be heard in the District Court later the same day. The urgent application may have had an impact upon the applicant’s bail application. Fortunately, I now had more time to reflect upon my findings in the urgent application and to produce this written judgment for purposes of this application.

Brief background

[2] Ms. Bina Mfandifuna Masuku (“Ms. Masuku”)[1] was employed by the Department of Justice and Correctional Services[2] (“the Department”). Ms. Masuko holds an LLB degree. Ms. Masuku was admitted as an advocate of the High Court of South Africa on 24 May 2012. Ms. Masuku joined the Department as an intern in 2005 and was permanently employed by the Department as an Estate Controller on 1 August 2006. Thereafter, Ms. Masuku was promoted to the positions of Assistant- and Deputy Master. In 2012, the Department transferred Ms. Masuku to Mbombela in order the establish the Master’s office in Mbombela. Ms. Masuku is the holder of an RSA Identity Document (“identity document”).

[3] Ms. Masuku was dismissed from her employment with the Department subsequent to disciplinary proceedings and subsequent to an investigation by the Department of Home Affairs (“Home Affairs”)[3] which revealed, according to Home Affairs, that Ms. Masuku obtained her identity document through fraud. Ms. Masuku is presently in custody awaiting trial in the Magistrates Court for the District of Mbombela on four counts of fraud and an alternative count of theft. Three of the counts of fraud relate to the alleged misrepresentations Ms. Masuku made in respect of her identity to the Department and Home Affairs Ms. Masuku’s co-accused in the fourth count of fraud and the alternative court of theft is Mr. Pule Elvis Kgosimang and Mr. Kgosimang’s company, Tanvise Trustservices (Pty) Ltd.

[4] In the criminal proceedings, the State alleges that Ms. Masuku is a Malawian National and committed fraud over her nationality and

status. Furthermore, the State alleges that Ms. Masuku, in her position as Deputy Master assisted Mr. Kgosimang to defraud and steal from various deceased estates that were referred to Mr. Kgosimang by Ms. Masuku.

[5] On 6 November 2019, Home Affairs declared Ms. Masuku a “prohibited” person in terms of Section 29(1)[4] of the Immigration Act 13 of 2002 (“the Act”). I shall refer to Home Affairs’ decision to declare Ms. Masuku a “prohibited” person as “the declaration”. The declaration came after an investigation into Ms. Masuku’s status in the Republic of South Africa. An immigration officer of Home Affairs conducted the investigation and communicated the declaration to Ms. Masuku a letter that was given to her at her first appearance in the Magistrates Court on 8 November 2020 on the aforesaid charges.

[6] Ms. Masuku’s woes therefore stem from issues pertaining to her identity document and allegations of misconduct and crimes she has allegedly perpetrated with other persons while she was employed by the Department.

[7] In the urgent application, besides the normal prayers in terms of Rule 6(12) of the Uniform Rules, Ms. Masuku’s notice of motion read as follows:

3. THAT the decision taken by the First Respondent no 6 November 2019 to declare the Applicant a prohibited person in terms of the section 29(1) of the Immigration Act, 2002 (Act No. 13 of 2002) be declared unconstitutional, and be set aside.”

4. THAT the Immigration Officer did not have the necessary power and authority to declare the Applicant a prohibited person and has, therefore, acted ultra vires.

5. That the matter be remitted back [sic] to the First Respondent for reconsideration and the First respondent is directed to give the Applicant:

5.1 Adequate notice of the nature and purpose of the proposed decision;

5.2 A reasonable opportunity to make representations;

5.3 Adequate notice of any right of review or internal appeal, where application; and

5.4 Adequate notice of right to request reasons in terms of section 5 [in terms of the Promotion of Administrative Justice Act, 3 of 2000];

6. THAT the decision taken by the Respondent to terminate the employment of the Applicant based on the decision of the first Respondent, declaring the Applicant a prohibited person in terms of section 29(1) of the Immigration Act, 2002, be declared irrational and unlawful; and be set aside.”

7. THAT the First Respondent are ordered to pay the costs of this application on an Attorney and Client Scale.

8. THAT the First and Second Respondents be called upon to file Answering Affidavits on or before the

2020, in the event they failed to file any on the 8th January 2020 as provided hereunder.

9. THAT the

2020 at 09h00, or so soon thereafter as the matter may be heard, be declared a return date whereupon the First and Second Respondents are called upon to show why the interim Court Order should not be made final.”

[8] Mr. Mashego, who appeared for Ms. Masuku in the urgent application (and also in this application), confirmed that Ms. Masuku sought the relief in prayers 3 to 7 as interim relief coupled with a rule nisi and a return day. However, the notice of motion did not provide for interim relief with immediate effect pending the return day of a rule nisi, which return day was also not indicated. I therefore resolved to approach the matter on the basis that Ms. Masuko was seeking final relief, i.e the review and setting aside of the declaration (prayer 3), a declaratory order relating to the immigration officer’s

powers (prayer 4), interdicts compelling Home Affairs (prayers 5 to 5.4) and the review and setting aside of the Department’s

decision to terminate Ms. Masuku’s employment (prayer 6). Whether the relief was sought as interim or final relief, the grounds

for the review of the respondents’ decisions had in any event to be established either in terms of the common law of in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”)[5].

[9] In essence, Ms. Masuku challenged the process leading up to the declaration and thereafter. Prayers 3 and 4 of the notice of motion was the pinnacle of the relief Ms. Masuku sought in prayers 5 and 6 of the notice of motion for a finding in favour of Ms. Masuku

in prayers 3 or 4 of the notice of motion would have meant that the declaration had to be set aside and the relief in prayers 5 and 6 had to be granted.

[10] Mr. Luneburg appeared for the respondents in the urgent application. The respondents did not file any papers because they apparently did not have enough time to do so. Mr. Luneburg raised urgency and the fact that the dispute over Ms. Masuku’s identity document is pending before the Magistrate’s court as in limine defences. I summarily dismissed both defences. I directed that the matter be adjudicated upon the applicant’s version in respect of the merits.

[11] Aggrieved by this court’s order, Ms. Masuku now applies for leave to appeal to the Supreme Court of Appeal. I deem it not necessary to recite Ms. Masuku’s grounds of appeal in full in the main body of this judgment. Ms. Masuku’s full grounds of appeal are set out in the endnotes to this judgment.[6] Mr. Mashego confirmed that Ms. Masuku does not challenge the dismissal of prayer 6 of the notice of motion. In my view, the prospect of success on appeal must be considered only in relation to four issues, the first being, whether the immigration officer acted

ultra vires in issuing the declaration. The second issue being whether Ms. Masuku had the right to be informed that the declaration was contemplated by Home Affairs so that she could make representations before the declaration was made. The third issue is whether Ms. Masuku was given adequate reasons for the declaration. The fourth issue is whether Home Affairs’ failure to inform Ms. Maseko of her right of appeal or review invalidated the declaration.

Challenge to the immigration officer’s authority

[12] It is not the immigration officer who made the declaration. The declaration was made by Home Affairs, acting under section 29(1) of the Act. The immigration officer investigated the matter and communicated the result. The fact that the immigration officer had investigated the matter, informed Ms. Masuku of the outcome of the investigation and of Home Affairs’ decision does not make it the immigration officer’s decision and the decision does not depend upon his authority. Nothing prevented the immigration officer to investigate and communicate pertaining to the declaration. In any event, the Constitutional Court has held [7]that: “In modern government it is a practical necessity that functions assigned by the Constitution and legislation often need to be performed by administrative officials.” The immigration officer is one such official through whom Home Affairs executed its function in this instance. There was and still

is no merit in Ms. Masuku’s challenge to the immigration officer’s authority.

Right to be heard before the declaration was made

[13] Ms. Masuku, upon her own version, was invited by the immigration officer who “….caused to complete an affidavit confirming…..”[8] her birth and nationality status. Ms. Masuku says that “…. Apparently, after the affidavit I completed on 25 April 2018, the said Thabo Joseph Mahlangu, a Control Immigration Officer employed by the First Respondent. The said Thabo Joseph Mahlangu did not contact me until 8 November 2018.”[9] 8 November 2018 has significance because it was this date upon which Ms. Masuku was informed of the declaration.

[14] During argument in the urgent application, Mr. Mashego argued that Ms. Masuku was entitled to be informed that Home Affairs intended to make the declaration, which Home Affairs did not do and that she was therefore deprived of an opportunity to be heard before the declaration was made. This argument appears to arise from a somewhat obscured legal submission in the founding affidavit where Ms. Masuku said that “….Section 3(2)(a) [of PAJA] provides that in order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1):….11.1 Adequate notice of the nature and purpose of the proposed administrative action;” [10] This requirement arises from the provisions of section 3(2)(b)(i) of PAJA.

[15] Although this prior notice requirement is undeniably sound, the obligation to comply with any one or all of the requirements of section 3(2)(b) of PAJA is subject to sections 3(2)(a) and 3(4) of PAJA. Section 3(2)(a) of PAJA provides as follows:

“A fair administrative procedure depends on the circumstances of each case.”

Section 3(4) of PAJA provides as follows:

“(a) If it is reasonable and justifiable in the circumstances, an administrator may depart from any of the requirements referred to in subsection (2).

(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including—

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;

(iii) the likely effect of the administrative action;

(iv) the urgency of taking the administrative action or the urgency of the matter; and

(v) the need to promote an efficient administration and good governance.”

[16] Section 3 of PAJA mandates procedurally fair administrative action in respect of decisions which materially and adversely affects the rights or legitimate expectations of any person.[11] Undoubtedly, the declaration materially and affected Ms. Masuku’s rights and legitimate expectations and therefore had to be procedurally fair.[12] In 410 Voortrekker Road Property Holdings CC v Minister of Home Affairs and Others 2010 (8) BCLR 785 (WCC), at paragraph 22, Binns-Ward J said that:

“……administrative justice would in general require that the power be exercised only after a process of consultation with those whose rights are liable to be materially and adversely affected thereby. (Statutory authority can never grant a licence to cause foreseeable harm to third parties that could, by the taking of appropriate measures, reasonably be avoided or mitigated;

[17] Generally, procedurally fair administrative action requires consultation before a decision is made. However, this does not mean that for administrative action to be fair, consultation is required in all circumstances. The circumstances under which an administrative

act is done differ and fairness, procedurally or otherwise will depend upon the circumstances under which the administrative act was done. What is fair and not fair is not confined to the factors in PAJA against which fairness must be evaluated. The factors listed in PAJA are mere pointers – it is not check boxes that must be checked before administrative action is to considered fair for such an approach would be mechanical and may lose sight of the particular circumstances under which the administrative action took place.

[18] The question therefore to be decided is as follows: Having regard to the circumstances of the declaration, was Home Affairs’

failure to inform Ms. Maseko of its intention to make the declaration before same was made reasonable and justifiable, having regard to amongst others, the factors listed in sub-section 3(4)(b)? If it was not, the decision must be corrected.

[19] The declaration was made after Ms. Masuku was requested by Home Affairs to confirm her “birth and nationality status”.

Ms. Masuku did so in an affidavit, the content of which, according to Home Affairs constituted a fraud. Ms. Masuku can therefore not say that she was not heard at all. It was the information that she furnished in the affidavit which was verified and allegedly found to be untrue. This constitute the particular circumstances under which the declaration was made in Ms. Masuku’s case.

[20] The State has a legitimate interest in the security of its borders and the integrity of its immigration systems.[13] Home Affairs play an important role in this regard. The Act is an important tool and Home Affairs’ arsenal to achieve this

objective. In my view, the objects of the Act and the duty imposed by the Act upon Home Affairs will be frustrated if the requirement of consultation must be met before a declaration in terms of section 29(1) of the Act is made. Informing an illegal immigrant of Home Affairs’ intent before he or she is declared a prohibited person may frustrate the consequences arising from such declaration

because between the time Home Affairs informs a person of its intention declare him or her a prohibited person, such person can,

for instance, easily attempt to evade arrest and deportation. In my view, the Act does not expressly provide for consultation for good reason. To the extent that consultation is not required constitutes a departure from the requirements for fair administrative action, I am of the view that such departure is reasonable and justifiable having regard to the factors listed in sub-section 3(4)(b)(i) to (v).

[21] Ms. Maseko’s challenge in this regard still has no merit.

Reasons

[22] Sub-section 3(2)(b)(v) of PAJA prescribes that fair administrative action requires notice to a person of the right to request reasons in terms of section 5 [of PAJA]. What is said previously in this judgment over the requirements in PAJA against which the fairness of administrative action ought to be evaluated equally applies in this challenge.

[23] Ms. Maseko was given full reasons for the declaration in the letter which Home Affairs gave her on 8 November 2018. In addition, attached to the letter, was the evidence Home Affairs apparently considered to make the declaration. Was Ms. Maseko entitled to be informed that she has a right to reasons for the declaration under these circumstances? I say not. She was given reasons and those reasons were sufficient for her to exercise her internal remedies provided for in section 8 of the Act.[14]

Notice of the right to appeal or review

[24] Section 8 provides for appeals and reviews to either the Minister or the Director-General. Section 8(4) of the Act would apply to the declaration for it was a decision other than a decision under sub-section 8(1) of the Act. Ms. Maseko therefore has a right of appeal to the Director-General of Home Affairs. This constitutes her internal remedy and is still available to her subject thereto that she is able to convince the Director-General to still hear such review or appeal notwithstanding the lapse of the period of ten day prescribed in sub-section 8(4) of the Act for the lodging of a review or appeal.

[25] Sub-section 8(3) of the Act requires notice to be given to a person affected by a decision in the prescribed format. The prescribed form to communicate the decision and to inform the person of his/her right to appeal or review is part of the Immigration Regulations.[15] The mandatory notice requirement in sub-section 8(3) has a clear purpose. Its purpose is to ensure persons who are affected by Home Affairs’ decisions are properly informed of the decision and there rights thereafter. Ms. Maseko alleges that she was not given such notice at all. There was nothing in the papers to gainsay that allegation. I accept that Ms. Maseko received no notice of her right to appeal or review the declaration despite section 8(3) of the Act prescribing that notice must be given in the prescribed format and that the form which is prescribed for this purpose, includes a notification of a right to an appeal or review.

[26] Of course court (or tribunal) has the power to judicially review an administrative action if a mandatory and material procedure or condition prescribed by an empowering provision was not complied with or the action was procedurally unfair.[16] Sub-section 3(2) of PAJA once again takes prominence in this instance. The procedural fairness of each administrative decision

must be evaluated on a case by case basis. One glove does not fit all. Not all administrative decisions are destined to be overturned

just because prescribed procedures were not followed and, only mandatory and material procedures or conditions that are prescribed

and which were not complied with may overturn an administrative decision. The issue is rather whether, in the particular instance,

the non-compliance with prescribed procedure (even if it is mandatory or a condition) lead to unfair administrative action which is invalid for its unfairness.

[27] Returning to the circumstances of this particular case. Ms. Masuku complains that she was not given the prescribed notice. Did this remiss by Home Affairs invalidate the declaration? I say not. I say not because, in this particular instance, Ms. Maseko was informed by Home Affairs in the letter of 8 November 2018 that she “….will be dealt with in terms of the Immigration Act 2002, as amended.”[17] She was also told in express terms in the letter that the declaration was in terms of section 29(1) of the Act. Ms. Masuku is not a lay person. She holds an LLB degree is an admitted advocate. Why could Ms. Maseko, having received the letter of 8 November 2018, not consider what she could do over the declaration in view of her legal knowledge. What is more, Ms. Maseko was legally represented by Mr. Mashego almost throughout her disciplinary proceedings and was represented at her first court appearance on 8 November 2018. All Mr. Maseko had to do was to refer to the Act and then Ms. Maseko’s remedies in terms of section 8(4) would have been glaringly apparent. Ms. Maseko could most certainly not have been at loss as to what her immediate remedies were. What real difference would the statutory notice have made under these circumstances? I say none. To invalidate the declaration on the ground that Ms. Maseko did not receive the mandatory notice would place form above substance.

Internal remedies

[28] Ms. Maseko has not exercised the internal remedies provided for in section 8(4) of the Act. She had a duty to do so and may still be open to her to pursue.[18] I remain of the view that the urgent application was premature because Ms. Maseko has not exercised the internal remedies provided for in the Act. The particular arm of State cannot be deprived of an opportunity to consider the challenge to the declaration by the premature intervention of the court.

The remaining issues

[29] During his argument in this application, Mr. Mashego handed me a copy of a document titled: A Practical Guide to Administrative Justice (First Edition-August 2002). The document appears to be a guide that has been commissioned by the German Technical Co-operation

on behalf of the Department of Justice / Justice College. Mr. Mashego impressed upon me to have regard to portions of the document, in particular page 10 thereof which proposes eight steps an administrator should take when called upon to make a decision. The

document does not bind me. I can merely, like any other research material in the law possibly sway me in one or the other direction. I had regard to the document. I remain unpersuaded that my findings in the urgent application was wrong.

[30] In this application for leave to appeal it is not about what I conclude over my findings, it is about the possibility that a higher court would come to another conclusion or whether there is some other compelling reason why the appeal should be heard, including

conflicting judgments on the matter under consideration.[19]

[31] I must give leave to appeal if there is a reasonable prospect that another court would come to another conclusion. It is by now accepted that the bar that is set for success in an application for leave to appeal is set higher than it was before the advent of the Superior Courts Act 10 of 2008. [20]Considering the grounds of appeal against the findings in the judgment, Ms. Maseko therefore had to satisfy this court that another court would come to another conclusion. In addition, Mr. Maseko seeks leave to appeal to the Supreme Court of Appeal. In terms of section 17(6) of the Superior Courts Act, if leave to appeal is granted, it must be granted to the full court of this Division unless the decision to be appealed involves a question of law of importance, whether because of its general application or otherwise, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion; or the administration of justice, either generally or in the particular case, requires consideration by the Supreme Court of Appeal of the decision.[21]

[32] I find that Ms. Maseko does not have a reasonable prospect that another court would come to a different conclusion than I did. In view of this finding, I need not consider myself with the exceptions to sub-section 17(6)(a). I see no reason why costs should not follow the result.

[33] In the premises, I made the following order:

(a) The application is dismissed;

(b) The applicant is ordered to pay the respondents’ costs;

(c) The Registrar of this court is directed to forthwith forward a copy of this judgment to the Mpumalanga Provincial Legal Practice Council.

_________________

Roelofse AJ

Acting Judge of the High Court

DATE OF HEARING: 28 February 2020

APPEARANCES

FOR THE APPLICANT: Mr. DM Mashego

INSTRUCTED BY: Dima

Mashego Attorneys

FOR THE RESPONDENTS: Mr. Slabber

INSTRUCTED BY: Slabber

Attorneys

DATE OF JUDGMENT: 5 March 2020

[1] The applicant.

[2] The Minister of the Department of Justice and Correctional Service is the second respondent.

[3] The Minister of Home Affairs is the first respondent.

[4] Section 29(1) of the Immigration Act reads as follows: “Prohibited persons.—(1) The following foreigners are prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit: (a) Those infected with or carrying infectious, communicable or other diseases or viruses as prescribed; (b) anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping; (c) anyone previously deported and not rehabilitated by the Director-General in the prescribed manner; (d) a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence; (e) anyone who is or has been a member of or adherent to an organisation or association utilising crime or terrorism to pursue its ends; and ( f ) anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document.”

[4] Section 29(1) of the Immigration Act reads as follows:

“Prohibited persons.—(1) The following foreigners are prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit:

(a) Those infected with or carrying infectious, communicable or other diseases or viruses as prescribed;

(b) anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping;

(c) anyone previously deported and not rehabilitated by the Director-General in the prescribed manner;

(d) a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence;

(e) anyone who is or has been a member of or adherent to an organisation or association utilising crime or terrorism to pursue its ends; and

( f ) anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document.”

[5] Prayer 3 of the notice of motion leave both options open to follow and prayer 5.4 appears to found its basis upon PAJA.

“1. The Honourable Court misdirected itself by failing to take notice of the connection between and severability of prayers 3, 4 and 5. 2. The Honourable Court misdirected itself by failing to comprehend the

nature of the application; in actual fact, the Honourable Court misconstrued the application of the Applicant. 3. The Honourable Court erred in finding that the founding affidavit sets out the requirements for an (interim) interdict, whereas (interim) interdict are not sought in the notice of motion. (P. 62,

line 18) 4. The Honourable Court erred and / or misdirected itself by putting more emphasis on the facts that the Applicant was given the reasons for the decision to declare her a prohibited person. 5. The Honourable Court misdirected itself by failing to take into account that a fair administrative action is not only limited to the provision of reasons for the administrative action, but, among others, also include: 6. Provision of adequate notice of the nature and purpose of the administrative decision; 7. Affording a reasonable opportunity to make representation, which include a right to be legally represented; and 8. Provision of adequate notice of any right to review or internal appeal 9. The Honourable Court erred and / or misdirected itself by failing to consider or take into account that the provision of reasons is a step in all probabilities almost at the tail end of every administrative process. 10. The Honourable Court erred in finding that in this matter the applicant was legally represented; there is nowhere in the papers of the Applicant where she states that she had enjoyed legal representation throughout the process of taking the administrative decision to declare her a prohibited person. P. 69, line 10) 11. The Honourable Court committed an error in finding that “if that person is not represented and a lay person, and a decision is taken, obviously it is quite important and necessary that such

person must be informed of his right of review and of appeal. This matter is different.” (P. 69, line 18) 12. The Honourable Court erred and / or misdirected itself in failing to consider that the Immigration Act did not lay down any procedure for declaring a person a prohibited person in terms of Section 29(1). 0cm; line-height: 200%">13. The Honourable Court erred in finding, by implication, that the finding that the Applicant is a prohibited person in terms of section 29(1)(f) is procedurally fair. 14. The Honourable Court committed an error by failing to take into account the established principle of the law that a review or appeal authority may not consider new evidence that was not put before

administrator who took the decision in the initial instance. 15. The Honourable Court erred and / or misdirected itself in finding that the application was premature; i.e. was brought to soon. (P. 73, line 1) 16. The Honourable Court committed an error; having found that the application was premature, the Honourable Court failed to direct the Application to exhaust internal remedy as required by section 7(2)(b) of the PAJA. 17. The Honourable Court committed an error in finding that the facts in Koyabe and Others v Minister of Home Affairs are broadly similar (almost similar) to the facts in this matter. (P. 70, line 20 18. The Honourable Court committed erred and / or misdirected itself by

failing to take into an account the many glary dissimilarities in the facts of the case Koyabe and in this matter. 19. The Honourable Court committed erred and / or misdirected itself in

finding that it simply does not have jurisdiction to adjudicate on prayer 6. (P. 75, line 1) 20. The Honourable Court committed an error by failing to take into account the provisions of section 157, read with section 186, 187 and 188, of the Labour Relations Act. 21. The Honourable Court committed erred and / or misdirected itself in

making the costs order against the Applicant.”

“1. The Honourable Court misdirected itself by failing to take notice of the connection between and severability of prayers 3, 4 and 5.

2. The Honourable Court misdirected itself by failing to comprehend the

nature of the application; in actual fact, the Honourable Court misconstrued the application of the Applicant.

3. The Honourable Court erred in finding that the founding affidavit sets out the requirements for an (interim) interdict, whereas (interim) interdict are not sought in the notice of motion. (P. 62,

line 18)

4. The Honourable Court erred and / or misdirected itself by putting more emphasis on the facts that the Applicant was given the reasons for the decision to declare her a prohibited person.

5. The Honourable Court misdirected itself by failing to take into account that a fair administrative action is not only limited to the provision of reasons for the administrative action, but, among others, also include:

6. Provision of adequate notice of the nature and purpose of the administrative decision;

7. Affording a reasonable opportunity to make representation, which include a right to be legally represented; and

8. Provision of adequate notice of any right to review or internal appeal

9. The Honourable Court erred and / or misdirected itself by failing to consider or take into account that the provision of reasons is a step in all probabilities almost at the tail end of every administrative process.

10. The Honourable Court erred in finding that in this matter the applicant was legally represented; there is nowhere in the papers of the Applicant where she states that she had enjoyed legal representation throughout the process of taking the administrative decision to declare her a prohibited person. P. 69, line 10)

11. The Honourable Court committed an error in finding that “if that person is not represented and a lay person, and a decision is taken, obviously it is quite important and necessary that such

person must be informed of his right of review and of appeal. This matter is different.” (P. 69, line 18)

12. The Honourable Court erred and / or misdirected itself in failing to consider that the Immigration Act did not lay down any procedure for declaring a person a prohibited person in terms of Section 29(1).

0cm; line-height: 200%">13. The Honourable Court erred in finding, by implication, that the finding that the Applicant is a prohibited person in terms of section 29(1)(f) is procedurally fair.

14. The Honourable Court committed an error by failing to take into account the established principle of the law that a review or appeal authority may not consider new evidence that was not put before

administrator who took the decision in the initial instance.

15. The Honourable Court erred and / or misdirected itself in finding that the application was premature; i.e. was brought to soon. (P. 73, line 1)

16. The Honourable Court committed an error; having found that the application was premature, the Honourable Court failed to direct the Application to exhaust internal remedy as required by section 7(2)(b) of the PAJA.

17. The Honourable Court committed an error in finding that the facts in Koyabe and Others v Minister of Home Affairs are broadly similar (almost similar) to the facts in this matter. (P. 70, line 20

18. The Honourable Court committed erred and / or misdirected itself by

failing to take into an account the many glary dissimilarities in the facts of the case Koyabe and in this matter.

19. The Honourable Court committed erred and / or misdirected itself in

finding that it simply does not have jurisdiction to adjudicate on prayer 6. (P. 75, line 1)

20. The Honourable Court committed an error by failing to take into account the provisions of section 157, read with section 186, 187 and 188, of the Labour Relations Act.

21. The Honourable Court committed erred and / or misdirected itself in

making the costs order against the Applicant.”

[7] In Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) at paragraph 45.

[8] Paragraph 7.35 of Ms. Masuku’s founding affidavit at page 28 of the papers.

[9] Paragraph 7.36 of Ms. Masuku’s founding affidavit at page 28 of the papers.

[10] Paragraph 11 and 11.1 of Ms. Masuku’s founding affidavit at page 31 of the papers.

[11] See: In Zondi v MEC for Traditional and Local Government Affairs and Others [2004] ZACC 19; 2005 (4) BCLR 347 (CC) where Ngcobo J stated: “PAJA was enacted pursuant to the provisions of s 33, which requires the enactment of national legislation to give effect to the right to administrative action. PAJA therefore governs the exercise of administrative action in general. All decision-makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with PAJA. The effect of this is that statutes that authorise administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA.” (Footnotes omitted).

[11] See: In Zondi v MEC for Traditional and Local Government Affairs and Others [2004] ZACC 19; 2005 (4) BCLR 347 (CC) where Ngcobo J stated:

“PAJA was enacted pursuant to the provisions of s 33, which requires the enactment of national legislation to give effect to the right to administrative action. PAJA therefore governs the exercise of administrative action in general. All decision-makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with PAJA. The effect of this is that statutes that authorise administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA.” (Footnotes omitted).

[12] See: Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) at paragraph 69 where Froneman J stated that: “Administrative action which “materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.” Any administrative decision taken in terms of the Act must be taken in accordance with the principles of procedural fairness. Procedural fairness generally requires adequate notice of the nature and purpose of any proposed administrative action and a reasonable opportunity for the affected person to make representations in respect of the proposed action (Footnotes omitted). Also see Koyabe and Others v Minister for Home Affairs and Others 2010 (4) SA 327 (CC) at paragraph 61.

[12] See: Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) at paragraph 69 where Froneman J stated that:

“Administrative action which “materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.” Any administrative decision taken in terms of the Act must be taken in accordance with the principles of procedural fairness. Procedural fairness generally requires adequate notice of the nature and purpose of any proposed administrative action and a reasonable opportunity for the affected person to make representations in respect of the proposed action (Footnotes omitted).

Also see Koyabe and Others v Minister for Home Affairs and Others 2010 (4) SA 327 (CC) at paragraph 61.

[13] See: Koyabe at paragraph 44.

[14] Section 8 provides as follows: “Review and appeal procedures.—(1) An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and— (a) if he or she arrived by means of a conveyance which is on the point of departing and is not to call at any other port of entry in the Republic, that request shall without delay be submitted to the Minister; or (b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision. (2) A person who was refused entry or was found to be an illegal foreigner and who has requested a review of such a decision— (a) in a case contemplated in subsection (1) (a), and who has not received an answer to his or her request by the time the relevant conveyance departs, shall depart on that conveyance and shall await the outcome of the review outside the Republic; or (b) in a case contemplated in subsection (1) (b), shall not be removed from the Republic before the Minister has confirmed the relevant decision. (3) Any decision in terms of this Act, other than a decision contemplated in subsection (1), that materially and adversely

affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the

reasons for that decision. (4) An applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection (3), make an application in the prescribed manner to the Director-General for the review or appeal of that decision. (5) The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision. (6) An applicant aggrieved by a decision of the Director-General contemplated in subsection (5) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision. (7) The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.

[14] Section 8 provides as follows:

“Review and appeal procedures.—(1) An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and—

(a) if he or she arrived by means of a conveyance which is on the point of departing and is not to call at any other port of entry in the Republic, that request shall without delay be submitted to the Minister; or

(b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision.

(2) A person who was refused entry or was found to be an illegal foreigner and who has requested a review of such a decision—

(a) in a case contemplated in subsection (1) (a), and who has not received an answer to his or her request by the time the relevant conveyance departs, shall depart on that conveyance and shall await the outcome of the review outside the Republic; or

(b) in a case contemplated in subsection (1) (b), shall not be removed from the Republic before the Minister has confirmed the relevant decision.

(3) Any decision in terms of this Act, other than a decision contemplated in subsection (1), that materially and adversely

affects the rights of any person, shall be communicated to that person in the prescribed manner and shall be accompanied by the

reasons for that decision.

(4) An applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection (3), make an application in the prescribed manner to the Director-General for the review or appeal of that decision.

(5) The Director-General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that decision.

(6) An applicant aggrieved by a decision of the Director-General contemplated in subsection (5) may, within 10 working days of receipt of that decision, make an application in the prescribed manner to the Minister for the review or appeal of that decision.

(7) The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.

[15] Form 2 (DHA–1714A).

[16] Sections 6(2)(b) and (c) of PAJA.

[17] Paragraph 15 of the letter at page 159 of the papers (Annexure “BBM30”).

[18] See regarding the duty to exercise section 8 of the Act remedies Koyabe supra at paragraphs 34 to 45.

[19] Sections 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013.

[20] See: Daantye Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (LCC 75/2008) [2015] ZALCC 1 (26 February 2015) at paragraph 3: “The principle to be adopted in applications for leave to appeal has been codified in section 17(1) of the Superior Courts Act 10 of 2013 (‘the new Act’) and is, inter alia, ‘whether the appeal would have a reasonable prospect of success’.

Bertelsmann J, in The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others LCC14R/2014, (an unreported judgment of this Court delivered on 3 November 2014) in considering whether leave to appeal ought to be granted in that matter, held that the threshold for granting leave to appeal had been raised in the new Act. Bertelsmann J found that the use of the word ‘would’ in the new Act indicated a measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against. Consequently, the bar set in the previous test, which required ‘a reasonable prospect that another Court might come to a different conclusion’, has been raised by the new Act and this then, is the test to be applied in this matter.”

[20] See: Daantye Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (LCC 75/2008) [2015] ZALCC 1 (26 February 2015) at paragraph 3:

“The principle to be adopted in applications for leave to appeal has been codified in section 17(1) of the Superior Courts Act 10 of 2013 (‘the new Act’) and is, inter alia, ‘whether the appeal would have a reasonable prospect of success’.

Bertelsmann J, in The Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others LCC14R/2014, (an unreported judgment of this Court delivered on 3 November 2014) in considering whether leave to appeal ought to be granted in that matter, held that the threshold for granting leave to appeal had been raised in the new Act. Bertelsmann J found that the use of the word ‘would’ in the new Act indicated a measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against. Consequently, the bar set in the previous test, which required ‘a reasonable prospect that another Court might come to a different conclusion’, has been raised by the new Act and this then, is the test to be applied in this matter.”

[21] Sections 17(6)(a)(i) and (ii).