Ncube and Another v Minister, Department of Home Affairs and Others (CA 224/2009) [2010] ZAECGHC 61 (29 July 2010)

Ncube and Another v Minister, Department of Home Affairs and Others (CA 224/2009) [2010] ZAECGHC 61 (29 July 2010)

The court held that the Director-General was not legally empowered to decide the internal appeal, which should have been adjudicated by the Minister. The supplementary application to set aside the dismissal of the internal appeal was necessary and permissible in law, as the unlawful administrative act could not simply be ignored but had to be set aside by the court. The adverse costs order against the Legal Resources Centre was unjustified, as the supplementary application was neither frivolous nor an abuse of process, and the second appellant was not afforded an opportunity to address the court on the costs issue. The appeal was upheld, the supplementary application granted, the...

Citation
[2010] ZAECGHC 61
Parties
Appellant: Zwelani Ncube; Appellant: Legal Resources Centre; Respondent: Minister, Department of Home Affairs; Respondent: Director-General, Department of Home Affairs; Respondent: Head of Immigration Services, Department of Home Affairs, Queenstown District Office; Respondent: Provincial Manager, Eastern Cape, Department of Home Affairs; Respondent: MEC, Department of Education; Respondent: Molteno High School
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
29 July 2010
Case Number
CA 224/2009
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Supplementary Application and Adverse Costs Order
Outcome
Appeal upheld with costs, including costs of application for leave to appeal and petition for leave to appeal.
Judges
E Revelas, N Dambuza, B Hartle
Legal Topics
Promotion of Administrative Justice Act, Judicial Review, Internal Appeal Procedure, Costs Orders, Immigration Permits
Administrative Law Civil Procedure Promotion of Administrative Justice Act Judicial Review Internal Appeal Procedure Costs Orders Immigration Permits

Case Brief

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Parties

Zwelani Ncube

Appellant

Legal Resources Centre

Appellant

Minister, Department of Home Affairs

Respondent

Director-General, Department of Home Affairs

Respondent

Head of Immigration Services, Department of Home Affairs, Queenstown District Office

Respondent

Provincial Manager, Eastern Cape, Department of Home Affairs

Respondent

MEC, Department of Education

Respondent

Molteno High School

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Supplementary Application and Adverse Costs Order

Legal Issues

  1. 1 Whether the Director-General was legally empowered to decide the internal appeal instead of the Minister.
  2. 2 Whether the supplementary application to set aside the dismissal of the internal appeal was necessary and permissible.
  3. 3 Whether the adverse costs order against the second appellant was justified.

Ratio Decidendi

The court held that the Director-General was not legally empowered to decide the internal appeal, which should have been adjudicated by the Minister. The supplementary application to set aside the dismissal of the internal appeal was necessary and permissible in law, as the unlawful administrative act could not simply be ignored but had to be set aside by the court. The adverse costs order against the Legal Resources Centre was unjustified, as the supplementary application was neither frivolous nor an abuse of process, and the second appellant was not afforded an opportunity to address the court on the costs issue. The appeal was upheld, the supplementary application granted, the...

Court Disposition

Appeal upheld with costs, including costs of application for leave to appeal and petition for leave to appeal.

Orders

  • The applicant's supplementary application is granted and the dismissal of the applicant's internal appeal is set aside.
  • The first to fourth respondents are ordered to pay the costs of the applicant's supplementary application.