Weng and Others v Minister of Home Affairs (633/99) [2003] ZANWHC 42 (31 July 2003)

““CASE NO 633/99

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:-

WENG, YU HUA 1st Applicant

WENG, AIHE 2nd Applicant

WENG, AIFA 3rd Applicant

LIN, JIAOJIAO 4th Applicant

WENG, NENHE 5th Applicant

and

THE MINISTER OF HOME AFFAIRS Respondent

APPLICATION

MAFIKENG

HENDRICKS

AJ

DATE OF HEARING : 26 June 2003

DATE OF JUDGMENT : 31 July 2003

COUNSEL FOR APPLICANTS : Adv. D. Prinsloo

COUNSEL FOR RESPONDENT : Adv. P. van der Bijl S.C.

HENDRICKS AJ: This is a ‘review cum interdict’ application, in which the Applicants seek an order in the following terms:- That the decision/s by Respondent to refuse to acknowledge the validity of the Permanent Residency permits of Applicants, be set aside, and/or That the decision/s by Respondent to refuse to provide the Applicants with acceptable alternative permits/opportunities to regularise their stay in South Africa on a more permanent basis, eg. by Respondents omitting to exercise a reasonable and proper administrative discretion to allow Applicants a new permanent residence application, and/or relief in terms of Section 28(2) and/or 26(1) (b) of the Aliens Control Act, and/or refuse to suo motu invite and/or consider such application/s, be set aside; and/or That the Respondent be interdicted to refrain to repatriate and/or remove from SA the Applicants pending finalisation of all

Applicant/s Court cases in SA; and/or That Respondent be interdicted to allow Applicants a new permanent residence application, and/or an application and/or relief in terms of Section 28(2) and/or 26(1) of the Aliens Control Act; and/or That Respondent be placed under a mandamus to consider or reconsider, and thereafter act accordingly, how Applicants may be assisted by Respondent to achieve their goal of undisturbed legal, peaceful and indefinite stay in SA.

HENDRICKS AJ:

This is a ‘review cum interdict’ application, in which the Applicants seek an order in the following terms:-

That the decision/s by Respondent to refuse to acknowledge the validity of the Permanent Residency permits of Applicants, be set aside, and/or

That the decision/s by Respondent to refuse to provide the Applicants with acceptable alternative permits/opportunities to regularise their stay in South Africa on a more permanent basis, eg. by Respondents omitting to exercise a reasonable and proper administrative discretion to allow Applicants a new permanent residence application, and/or relief in terms of Section 28(2) and/or 26(1) (b) of the Aliens Control Act, and/or refuse to suo motu invite and/or consider such application/s, be set aside; and/or

That the Respondent be interdicted to refrain to repatriate and/or remove from SA the Applicants pending finalisation of all

Applicant/s Court cases in SA; and/or

That Respondent be interdicted to allow Applicants a new permanent residence application, and/or an application and/or relief in terms of Section 28(2) and/or 26(1) of the Aliens Control Act; and/or

That Respondent be placed under a mandamus to consider or reconsider, and thereafter act accordingly, how Applicants may be assisted by Respondent to achieve their goal of undisturbed legal, peaceful and indefinite stay in SA.

If the Honourable Court were to hold that the Ciskei Permanent Residency permits are in fact fraudulent permits, that the Respondent be estopped to dispute the validity of the permits, and/or the fact that Respondent treated Applicant/s like valid permit holders for a substantial period. This application was heard on 26th June 2003 and judgment was reserved. During the hearing of this application certain points in limine were raised by both the Applicants as well as the Respondent. I will deal with the point in limine raised by the Respondent first, because of the decision that I have reached. Lack of Jurisdiction of this Court The Respondent raised as a point in limine the fact that this court does not have jurisdiction to entertain this matter. It goes without saying that in the event I find that this court does not have the necessary jurisdiction to entertain this matter, the points in limine raised by the Applicants falls off and this court will not be entitled to pronounce on the merits of this matter. Facts that are common cause The following facts appears to be either common cause or admitted:- Applicants are holders of permanent residence permits which were allegedly issued by the former Ciskeian Government during 1992 and 1993.

If the Honourable Court were to hold that the Ciskei Permanent Residency permits are in fact fraudulent permits, that the Respondent be estopped to dispute the validity of the permits, and/or the fact that Respondent treated Applicant/s like valid permit holders for a substantial period.

This application was heard on 26th June 2003 and judgment was reserved.

During the hearing of this application certain points in limine were raised by both the Applicants as well as the Respondent. I will deal with the point in limine raised by the Respondent first, because of the decision that I have reached.

Lack of Jurisdiction of this Court

The Respondent raised as a point in limine the fact that this court does not have jurisdiction to entertain this matter. It goes without saying that in the event I find that this court does not have the necessary jurisdiction to entertain this matter, the points in limine raised by the Applicants falls off and this court will not be entitled to pronounce on the merits of this matter.

Facts that are common cause

The following facts appears to be either common cause or admitted:-

Applicants are holders of permanent residence permits which were allegedly issued by the former Ciskeian Government during 1992 and 1993.

During 1995, the Applicants entered the Republic of South Africa with these permits via Swaziland, Lesotho and Botswana respectively. Applicants are domiciled in Rustenburg. Applicants took up employment in Rustenburg, as being self employed business people. The First to the Fourth Applicants were arrested on 5 August 1997 in Rustenburg. The First to the Fourth Applicants appeared in the Rustenburg Magistrate’s Court on a charge of contravening Section 58 (1) (a) read with Section 1,5, of the Aliens Control Act, Act 96 of 1991 and the charge sheet read thus:- “ In that upon the 5th day of August 1997, in the district of Rustenburg the said accused did wrongfully and unlawfully for the purpose of remaining in the Republic of South Africa use permits, though issued by a lawful authority, which they are not entitled to use and is thus prohibited persons”. (My underlining) The First to the Fourth Applicants pleaded guilty and were consequently convicted. They were each fined with R1500 or 3 months imprisonment suspended for a period of 3 years on condition:- that they are not convicted of contravening Section 58(1)(a)(i) of the Aliens Control Act, Act 96 of 1991 committed during the period of suspension; and

During 1995, the Applicants entered the Republic of South Africa with these permits via Swaziland, Lesotho and Botswana respectively.

Applicants are domiciled in Rustenburg.

Applicants took up employment in Rustenburg, as being self employed business people.

The First to the Fourth Applicants were arrested on 5 August 1997 in Rustenburg.

The First to the Fourth Applicants appeared in the Rustenburg Magistrate’s Court on a charge of contravening Section 58 (1) (a) read with Section 1,5, of the Aliens Control Act, Act 96 of 1991 and the charge sheet read thus:-

“ In that upon the 5th day of August 1997, in the district of Rustenburg the said accused did wrongfully and unlawfully for the purpose of remaining in the Republic of South Africa use permits, though issued by a lawful authority, which they are not entitled to use and is thus prohibited persons”. (My underlining)

The First to the Fourth Applicants pleaded guilty and were consequently convicted. They were each fined with R1500 or 3 months imprisonment suspended for a period of 3 years on condition:-

that they are not convicted of contravening Section 58(1)(a)(i) of the Aliens Control Act, Act 96 of 1991 committed during the period of suspension; and

that they leave the Republic of South-Africa on or before the 08th day of September 1997 if their applications for permanent residence are refused; and they are liable to pay their own fare for their return to China. The very same permits which they admitted they are not entitled to use during their trial in the Rustenburg Magistrate Court, forms the basis of this application. Mnr van der Bijl S.C. who appeared on behalf of the Respondent submitted that it must be borne in mind that the former Ciskeian Republic (being the place where these permits were issued) and Rustenburg (being Applicant’s place of domicile) does not fall within the area of jurisdiction of this Honourable Court. I am of the view that these submissions made by Mr van der Bijl S.C. are indeed correct. Mr Van der Bijl S.C. further submitted that not a single fact on which the Applicants rely for the relief claimed occurred in this court’s area of jurisdiction and this court cannot exercise jurisdiction over this matter. He stated the following as reasons for his submission:- (a) As far as prayer 1 is concerned, the founding papers contain no single allegation that the alleged “decision” of the Respondent not to acknowledge the Applicants’ permanent residence permits has been taken in, or has been taken by any person who resides in, this Honourable Court’s area of jurisdiction.

that they leave the Republic of South-Africa on or before the 08th day of September 1997 if their applications for permanent residence are refused; and

they are liable to pay their own fare for their return to China.

The very same permits which they admitted they are not entitled to use during their trial in the Rustenburg Magistrate Court, forms the basis of this application.

Mnr van der Bijl S.C. who appeared on behalf of the Respondent submitted that it must be borne in mind that the former Ciskeian Republic (being the place where these permits were issued) and Rustenburg (being Applicant’s place of domicile) does not fall within the area of jurisdiction of this Honourable Court.

I am of the view that these submissions made by Mr van der Bijl S.C. are indeed correct.

Mr Van der Bijl S.C. further submitted that not a single fact on which the Applicants rely for the relief claimed occurred in this court’s area of jurisdiction and this court cannot exercise jurisdiction over this matter. He stated the following as reasons for his submission:-

(a) As far as prayer 1 is concerned, the founding papers contain no single allegation that the alleged “decision” of the Respondent not to acknowledge the Applicants’ permanent residence permits has been taken in, or has been taken by any person who resides in, this Honourable Court’s area of jurisdiction.

As far as prayer 2 is concerned, the founding papers likewise contain no single allegation that the Respondent has taken a decision in this Honourable Court’s area of jurisdiction to refuse to provide the Applicants with “acceptable alternative permits / opportunities to regularise their stay in South Africa on a more permanent basis, eg. by Respondent omitting to exercise a reasonable and proper administrative discretion to allow Applicants an application and/or relief in terms of Section 28(2) and 26(1) (b) of the Aliens Control Act, and/or to refuse to suo motu invite and/or consider such application/s” (c) As far as prayer 3 is concerned, there is likewise no single allegation contained in the founding papers that the Applicants are to be “repatriated and or removed from” any place falling in this Honourable Court’s area of jurisdiction. As far as prayer 4 and 5 are concerned, the powers to issue permits in terms of Section 26(1) of the Act and to grant exemptions in terms of Section 28(2) of the Act are powers conferred on the Director-General and the Minister, respectively, which are exercised from Pretoria and which, if they are so exercised, are to exercised in respect of the Applicants who reside in Rustenburg which falls outside this Honourable Court’s area of jurisdiction.

As far as prayer 2 is concerned, the founding papers likewise contain no single allegation that the Respondent has taken a decision in this Honourable Court’s area of jurisdiction to refuse to provide the Applicants with “acceptable alternative permits / opportunities to regularise their stay in South Africa on a more permanent basis, eg. by Respondent omitting to exercise a reasonable and proper administrative discretion to allow Applicants an application and/or relief in terms of Section 28(2) and 26(1) (b) of the Aliens Control Act, and/or to refuse to suo motu invite and/or consider such application/s”

(c) As far as prayer 3 is concerned, there is likewise no single allegation contained in the founding papers that the Applicants are to be “repatriated and or removed from” any place falling in this Honourable Court’s area of jurisdiction.

As far as prayer 4 and 5 are concerned, the powers to issue permits in terms of Section 26(1) of the Act and to grant exemptions in terms of Section 28(2) of the Act are powers conferred on the Director-General and the Minister, respectively, which are exercised from Pretoria and which, if they are so exercised, are to exercised in respect of the Applicants who reside in Rustenburg which falls outside this Honourable Court’s area of jurisdiction.

As far as prayer 6 is concerned, the alleged actions on which the Applicants are claiming an order that the Respondent be estopped from disputing the validity of the permits concerned are clearly not actions which had taken place in the area of jurisdiction of this Honourable Court. Mr Prinsloo, who appeared on behalf of the Applicants, submitted inter alia that the Applicants met with some of the officials of the Respondent and South African Police Services in the Tlhabane Sun where a “deal” was allegedly entered into. This is denied by the Respondent. However, of importance is the fact that this meeting in the Tlhabane Sun occurred after the court case has been finalised in the Rustenburg Magistrate Court and thus after the Applicants had submitted to the jurisdiciton of the Rustenburg Magistrate Court which falls outside the area of jurisdiction of this Court. It is therefore clear that the alleged meeting in Tlhabane Sun cannot establish jurisdiction. I am of the view that Mr van der Bijl’s submission that this court lacks the necessary jurisdiction to pronounce over this matter is indeed correct. The point in limine raised by the Respondent must therefore be upheld. As already stated above, due to the lack of jurisdiction I need not entertain the points in limine raised by the Applicants nor do I have the necessary locus standi to pronounce on the merits.

As far as prayer 6 is concerned, the alleged actions on which the Applicants are claiming an order that the Respondent be estopped from disputing the validity of the permits concerned are clearly not actions which had taken place in the area of jurisdiction of this Honourable Court.

Mr Prinsloo, who appeared on behalf of the Applicants, submitted inter alia that the Applicants met with some of the officials of the Respondent and South African Police Services in the Tlhabane Sun where a “deal” was allegedly entered into. This is denied by the Respondent.

However, of importance is the fact that this meeting in the Tlhabane Sun occurred after the court case has been finalised in the Rustenburg Magistrate Court and thus after the Applicants had submitted to the jurisdiciton of the Rustenburg Magistrate Court which falls outside the area of jurisdiction of this Court. It is therefore clear that the alleged meeting in Tlhabane Sun cannot establish jurisdiction.

I am of the view that Mr van der Bijl’s submission that this court lacks the necessary jurisdiction to pronounce over this matter is indeed correct. The point in limine raised by the Respondent must therefore be upheld.

As already stated above, due to the lack of jurisdiction I need not entertain the points in limine raised by the Applicants nor do I have the necessary locus standi to pronounce on the merits.

In the result, I make the following order:-

The application is dismissed with costs.

R.D. HENDRICKS

ACTING JUDGE OF THE HIGH COURT

DATED: 31 JULY 2003

Attorneys for the Applicants: S.M. Mookeletsi

Attorneys for the Respondent: State Attorney