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THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NR: 4754/2007

NOT REPORTABLE DATE: 18/1/2008

In the matter between:

WS KOYABE 1^st Applicant

MK KOYABE 2^nd Applicant

AS KOYABE 3^rd Applicant

and

THE MINSTER OF HOME AFFAIRS 1^st Respondent

DIRECTOR-GENERAL HOME AFFAIRS 2^nd Respondent

THE DEPARTMENT OF HOME AFFAIRS 3^rd Respondent

JUDGMENT

FABRICIUS: AJ

On 16 February 2007 I granted interim relief to applicants in the context of part A of the notice of motion pending the finalization of the application for relief in part B thereof. Respondents gave certain undertakings in that regard without conceding that applicants were not prohibited persons or entitled to any relief.

In terms of prayer 1 of part B applicants sought the following order:

1. In terms of section 8(1)(c) of the Promotion of Administrative Justice Act, 2000 “reviewing and setting aside the decisions of the second respondent to withdraw or terminate the permanent residence permits and status of the applicants and the children, and on a date as yet unknown to the applicant”. A costs order was also sought.

Respondents were called upon in terms of rule 53(1) of the High Court Rules to dispatch a record of the proceedings sought to be corrected or set aside together with such reasons as they were required to give or decide to give.

The first applicant made a founding affidavit which is dated 8 February 2007 and which contains some 45 annexures. First applicant made a further supplementary founding affidavit on 15 June 2006 which contained a further 11 annexures.

Respondents filed a notice of intention to oppose the relief sought on 13 February 2007 whilst first applicant filed the relevant portion of the record in terms of rule 53(3) on 15 June 2007. This record contains amongst others an affidavit by S Franke of the Department of Home Affairs in the Directorate: Investigations in terms of section 212 (1) of the Criminal Procedure Act, 51 of 1977 which sets out in some detail first applicant’s movements to and from South Africa in the context of the lawfulness or otherwise of his residents in South Africa. First applicant’s supplementary founding affidavit in turn deals with a number of the allegations made therein.

The record is voluminous and contains numerous complaints against the lawfulness of Franke’s and/or the second respondent’s conduct as well as a number of complaints relating to procedural irregularities. The respondents’ filed no answering affidavit, and I intend deciding the issue between the parties by reference to the founding affidavit and its annexures, the record filed by the respondents and the first applicant’s supplementary founding affidavit, having regard to the law.

In the supplementary founding affidavit first applicant admits that he applied for naturalization in October/November 2000 and that in consequence he received a temporary identity certificate in January 2001. It is not an issue herein that such was obtained as a result of fraud and, on first applicant’s version, this fraud must have been committed by someone in the employ of third respondent. He certainly denied any part in obtaining such certificate by fraudulent means. He alleges that when he made application for this document he partially completed the one form at the third respondent’s offices, and was told just to write in his name and address, and sign the form, and that they, ie the relevant officials, would complete the application in due course. Why such officials would do that, without any ostensible benefit to then, was not explained.

He alleges that he had no knowledge of the fact that there were in fact three applications for such temporary identity certificate and confirmed that he had only received and applied for one. He therefore denied that he obtained such identify certificate by fraudulent means and that he was found in possession thereof.

I do not intend dealing fully with the first applicant’s history
thereafter. It is however clear that the first applicant was arrested for fraud, and after an investigation it was decided that there was insufficient evidence to prosecute him. Apparently it was agreed between himself and the State that he would give evidence against the particular official of third respondent. It is however common cause that the first applicant received an “exemption” in terms of section 28 of the Aliens Control Act, 96 of 1991, on 13 June 1997. This Act was repealed by the Immigration Act, 13 of 2002, on 7 April 2003 which was in turn amended by the Immigration Amendment Act, 19 of 2004, with effect from 1 July 2005.

First applicant alleges that at the time the exemption was obtained he had no reason to suspect that it had been obtained and granted irregularly. He had only been informed of this alleged fact subsequently. On 30 June 2006 first applicant was issued with a permanent residence permit in terms of section 27(C) of the Immigration Act, 13 of 2002. He thereafter applied for the so-called “green identity documents” that are issued to permanent residents and to citizens. It was then that this application was referred to Franke at the respondent’s investigation section, and it was thereafter that various events occurred, which resulted in first applicant’s application.

On 1 December 2006 first applicant lodged a written complaint with the first respondent setting out his interaction with Ms Franke and referring briefly to the history of the matter.

According to the section 212(1) affidavit mentioned, Ms Franke revealed that first applicant obtained a South African identity document on 29 January 2001 by fraudulent means as a result of the fact that he claimed to have been born in the RSA. In terms of section 25(3) of the Immigration Act, 13 of 2003 he did not qualify for permanent residence subsequent to 2001, and the permanent residence status was granted to him erroneously. In that context she also relied on the provisions of section 29(1)(f) of the Act read with section 43 and 48 thereof. A number of interactions between applicants’ attorneys ad the Department occurred, which included a meeting on 30 November 2006.

On 9 January 2007 Ms Franke wrote to first applicant as follows, and
I quote parts of the letter:

“Our meeting on 30 November 2006 refers.

I have to inform you that an investigation into you residence status in the Republic of South Africa has revealed that you have previously obtained a South African identity document by fraudulent means. In terms of section 25(3) of the Immigration Act, 13 of 2002, as amended, you therefore, did not qualify for permanent residence status subsequent to July 2005. Section 25(3) clearly stipulates that permanent residence shall be issued on condition that the holder is not a prohibited person or an undesirable person.

You are in terms of section 29(1)(f) of the Immigration Act, a prohibited person for being found in possession of a fraudulent identification document. As a prohibited person, you do not qualify for a visa, admission into the Republic, a temporary residence or a permanent residence permit. ….

As an illegal foreigner, you are hereby in terms of section 8 of the Act notified that you may, within 3 days from receipt of the attached notice, request the Minister to review the decision to deport you.”

First applicant acknowledged receipt of this letter on 11 January 2007 and indicated that he intended to request a review of the decision and would submit such written request within three days. The written acknowledgement refers to section 8(1) of the Act and refers to the fact that the Minister would review the decision to deport first applicant. Second applicant similarly signed such acknowledgement of receipt and at the bottom thereof Ms Franke in writing stated “agreed to receive written representation by 15 January 2007”.

It is clear from the applicant’s supplementary founding affidavit that his attorney called upon the State Attorney to inspect the respondents’ files and that they met on 30 November 2006 during which meeting material parts of first applicant’s history were put to him.

Be that as it may, on 12 January 2007 first applicant’s attorneys wrote to first respondent regarding the appeal. It was stated that their clients had been presented with a series of conclusions of finding as opposed to “adequate reasons” that they were entitled to in terms of section 3 of the Administrative Justice Act. In the absence of those reasons, it was stated, they could not prepare an appeal and reasons were asked for as a matter of urgency. Another letter of complaint was written to an official of the second respondent on 15 January 2007 and reference was made to section 8(3) of the Immigration Act, and it was stated that it was unclear which “decision” first applicant had actually invited to appeal. Whatever it was, it was stated, proper reasons from the Department were still required.

A similar letter was written on 18 January 2007 and at this stage it was stated that applicants’ exercised their “constitutional right to information as contained in the Information Act, 2 of 2000”.

On 19 January 2007 a further letter was produced stating no reasons had at yet been supplied, and furthermore with reference to an annexure to the letter, specific information was sought in terms of the mentioned Information Act. The following was furthermore pointed out:

“(a) It is not clear that our clients were ever prohibited persons in terms of the Aliens Control Act;

(b) with effect from 7 April 2003, our clients could not have been ‘prohibited’ persons, as contemplated in section 29(1) of the Immigration Act (‘the Act’);

(c) applying section 29(1)(f) of the Act to our clients based on the events in 2001 (or earlier) constitutes the retrospective application of legislation, which is not contemplated in the Act and is unlawful; and

(d) section 48 of the Act does not purport to excuse the Department from compliance with section 8 of the Act, section 5 of PAJA and/or of more generally observing our clients’ rights to administrative justice.”

On 29 January 2007 a further letter was addressed to the Director: Litigation of the third respondent setting out which issues remained urgent and unresolved. Amongst others it was stated that applicants’ right of appeal/review could not lapse because they had not been given decisions and reasons as required by section 8, which were needed to prepare and submit any appeal or review request. Reference was made to second respondent’s letter of 26 January 2007 which stated the following:

“ … You put on record that your clients are not facing any detention and deportation at this stage.

Your clients, as illegal foreigners, had three days to request the Minster to review the decision of that declaration and the subsequent deportation on finalization of the criminal procedures, which they clearly failed to do.

Following our letter dated 9 January 2007, we laid charges of fraud against your clients with the South African Police Services.

Should you wish to peruse our clients’ file, you are at liberty to contact writer on this letter …”.

On reply to applicants’ letter of 29 January Ms Franke wrote to first applicant’s attorney attaching a copy from first applicant’s file stating that the Department was not in a position to provide him with a copy of the submission of the Permanent Residence Committee as this constituted an internal communication. He was advised to make representations to the Department for the necessary authorization to enable him to remain in the RSA pending the outcome of the appeal process. On 7 February 2007 Ms Franke again wrote to first applicant’s attorney stating the following:

“The reasons for the decision of the Department were set out adequately in the letter to your client dated 9 January 2007. Your subsequent reference to the non-compliance with PAJA are therefore, not quite clear. In fact, if the reasons given for the decisions were so devoid of basis, it should have made your review process that much easier. It does appear that after satisfying each request a new request was generated. This is not consistent with the letter of spirit of PAJA.

The Department has since then accommodated your many and varied requests despite the fact that no attempt was made to submit any review or appeal as required for. Many of these requests were irrelevant in respect of the status of your client. After having received the copies of the files, as requested, there could not have been any further reasons for the delay of the submission of the review of your client.

Taking this into consideration it is clear that from 1 February 2007, your client had three days to submit his request for review in terms of section 8(1), as all relevant information required for such review had been made available. Your client has neglected to do so. This review process was in respect of the fact that he was found to be an illegal foreigner who is liable for deportation in terms of section 32(2). From the aforegoing, it is clear that your clients’ rights to review their decision to declare them as illegal foreigners have lapsed. As such, the Department is not obliged to consider any further requests or review from your client.”

Mr Bofilatos, appearing on behalf of the respondents, in limine relied on the provisions of section 7(2)(a) of the Administrative Justice Act in the context of section 8 of the Immigration Act of 2004. This section provides for review and appeal procedures in some detail. It is common cause that applicant failed to make use of that procedure mainly or purportedly for the reasons stated in the correspondence that I have referred to. I say “purportedly” advisedly inasmuch as it is my distinct impression from first applicant’s own allegations in the founding and supplementary founding affidavit that all relevant facts were known to him and that respondents’ letter of 9 January 2007 contained no mystery at all. It is further my distinct impression that first applicant and/or his attorney was overly formalistic in that regard, and almost required the second and third respondents to prove any allegation beyond a reasonable doubt before they were prepared to take further steps in the context of an appeal or a review. Section 7(2)(a) of the Promotion of Administrative Justice Act, 3 of 2000 is quite explicit and directs that a court shall not revere an administrative action in terms of the Act unless any internal remedy provided for in any other law has first been exhausted. In my view there are no exceptional circumstances present (even if there was an application) which would allow me to exempt applicants from the obligation to exhaust the mentioned internal remedy.

Accordingly, I must act in terms of the provisions of section 7(2)(b) and direct that applicants must first exhaust their remedy in terms of section 8 of the mentioned Immigration Act before instituting proceedings in a court for judicial review. It is then for the respondents concerned to determine how they would react to such application in terms of section 8 of the Immigration Act.

I have considered the parties argument on the merits of the case as well, but do not deem it advisable at this stage to come to any conclusion in that regard inasmuch as I do not wish to influence the outcome of any section 8 proceedings at all.

In my view the applicants have wrongly ignored the provisions of section 7(2) of the Administrative Justice Act and there is no reason why I should deprive the respondent of the costs of this premature application.

Accordingly part B of the application is dismissed with costs. In the light of second respondent’s letter of 26 January 2007, I am also of the view that applicants had no basis for launching the urgent application that resulted in my interim order (by agreement between the parties) of 16 February 2007. The costs of that day were reserved and I am of the view that applicants ought to pay those costs as well.

DATED at PRETORIA on this 18^th day of DECEMBER 2007.

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HJ FABRICIUS
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION

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