Repatriation Deposits

QUESTION 661 / NW707E
DATE OF PUBLICATION: Mondya, 7 March February 2011
INTERNAL QUESTION PAPER NO 4 of 2011
Mrs A T Lovemore (DA) to ask the Minister of Home Affairs:

(1)        What is the (a) number and (b) value of repatriation guarantees collected (i) in the 2008-09 and (ii) 2009-10 financial years and (iii) during the period 1 April 2010 up to the latest specified date for which information is available;

(2)        for each of the above periods, (a) how many guarantees, expressed as (i) a number and (ii) a percentage of those received were paid to applicants for permits, (b) what are the reasons for repatriation guarantees not having been refunded and (c) what is the average time between the issuing of a relevant permit and the repayment of the repatriation guarantee to the applicant;

(3)        (a) into which account(s) are the guarantees paid when the funds are received by her Department and (b) what was the value of interest earned on the guarantees for each of the above periods;

(4)        whether the interest earned is included in the refund of the repatriation guarantee to the applicant; if not, why not; if so, what are the relevant details?
NW707E

REPLY:

(1)(a)                 The exact number cannot be provided, as the payments for repatriation guarantees collected, is processed abroad at the Foreign Offices. The data, or documentation for these guarantees is submitted to the Department, at a later stage, by the Department of International Relations, and Cooperation (DIRCO) from the various missions.

(1)(b)(i)  A total of R182,977,000.00 in the 2008/09 financial year.
(1)(b)(ii) A total of R50,340,000.00 in the 2009/10 financial year.
(1)(b)(iii)            A total of R129,704,000.00 in the period 1 April 2010, until 
28 February 2011.

(2)(a)                 As indicated in (1)(a) above, it is difficult to express the repatriation collections, as a number, and percentage which were received, and paid to the applicants. Refunds are processed at the Department’s Head Office for local applications, and at various Foreign Offices under the jurisdiction of DIRCO, who only submits supporting documents, at a later stage, to the Department.

(2)(b)                 In terms of the Immigration Act, 2002 (Act No 13 of 2002), a deposit shall be refunded to the depositor after the final departure of the applicant, or after a permit contemplated in terms of section 25 of the said Act has been issued to the applicant, read in conjunction with Immigration Regulation 8(2)(1)(f). Furthermore, in order for refunds to be effected, several internal control processes need to be followed. The Branch: Finance and Supply Chain Management, the Chief Directorate: Port Control (at the Department’s Head Office), and the Foreign Office where the guarantee payment was made, as well as, the commercial bank engage to ensure compliance with the requirements to ensure that refunds are made in the correct amount, and to the correct person.

(2)(c)                 This varies per application, in order to ensure compliance with regulations, and internal processes.

(3)(a)                 The Immigration Control Account (Aliens Deposit Account).

(3)(b)                 (i)         The value was R53,103,000.00
(ii)         The value was R36,616,000.00
(iii)        The value was R29,686,000.00

(4)(a)                 No. The interest is not included.

(4)(b)     The interest is utilised to pay for exchange rate losses, and the difference is paid over to the South African Revenue Services

http://www.pmg.org.za/node/29274

Dalai Lama Visa Judgment

Buthelezi and Another v Minister of Home Affairs and Others (22071/2011) [2012] ZAWCHC 3 (3 February 2012)


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IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN)




Case Number: 22071/2011







In the matter between:




Prince Mangosuthu Gatsha Buthelezi, MP …..........................................................First Applicant

Mosiuoa Lekota, MP ….........................................................................................Second Applicant

and

Minister of Home Affairs …...................................................................................First Respondent

Director-General of the Department of Home Affairs …................................Second Respondent

Minister of International Relations and Cooperation …....................................Third Respondent




Director-General of the Department of

International Relations and Cooperation ….....................................................Fourth Respondent







JUDGMENT DELIVERED ON FRIDAY 3 FEBRUARY 2012




Baartman, J









[1] The Dalai Lama, who resides in Dharamsala, India, intended to visit South Africa from 5-15 October 2011. His first engagement was scheduled for 7 October 2011, the 80th birthday party of Archbishop Emeritus Desmond Tutu. The Dalai Lama applied to the relevant South African authority for visas for himself and 6 of the persons who were due to accompany him; I deal with the specifics of his application below. However, by 4 October 2011, a decision in respect of his application remained outstanding. He withdrew his application because he was of the view that at that stage, he had insufficient time to travel to South Africa to meet his 7 October 2011 engagement, since his residence was a day's travel from the nearest airport.

[2] The applicants, Prince Mangosuthu Gatsha Buthelezi, MP, and, Mosiuoa Lekota, MP, have alleged that the failure to have timeously taken a decision in respect of the application has rendered the relevant government departments' (the respondents) conduct reviewable. They therefore sought to review and set aside the "refusal decision", in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) together with certain ancillary relief. Initially, the respondents took issue with the applicants' locus standi. They did not pursue that attack; I, for purposes of this judgment, accept that the applicants have locus standi.

[3] I deal below in more detail with the largely common cause facts on which the applicants relied for the relief claimed, the point in limine (that the matter is moot) and to the extent necessary, the applications by People Against Suffering and Poverty, Peace Action, Chamtrul Rinpoche's Buddhist Group and Karen Vos to be allowed to part take in the proceedings as amici curiae (the amici curiae).





BACKGROUND




[4] In addition to the 7 October engagement, the Dalai Lama also intended to deliver a speech entitled 'Peace and Compassion as a Catalyst for Change' and to attend events at the University of Stellenbosch, the Mahatma Gandhi Institute, and MaAfrica Tikkun.




The visa application

[5] On 20 June 2011, Mr Tsering (Tsering), a representative of the Dalai Lama, met Mrs Balatseng (Balatseng), an official at the offices of the South African High Commission in New Delhi. The applicants alleged that at the meeting, Tsering had attempted to submit the Dalai Lama's visa application but that Balatseng had refused to accept it and had instead advised that a visa once issued would only be valid for 3 months.

[6] It follows that, according to this advice, if the visa had been issued at that time, it would have expired prior to the Dalai Lama's intended travel. It is now common cause that that was not the legal position; instead, the period for which a visa is valid only starts running once the holder thereof has successfully presented it at a South African port of entry. (See, in particular, Regulation 9(6) of the Immigration Regulations: Government Gazette Volume 475:31 January 2005, which makes it clear that the 3-month period commences upon entry.)

[7] On 4 August 2011, Tsering attempted to re-submit the visa application, this time directly to the High Commissioner, who indicated that he was unable to accept the application because he was awaiting clearance from the South African government.

[8] On 29 August 2011, Tsering was able to file the Dalai Lama's application. However, 3 days later, an official of the South African High Commission returned the application to Tsering and informed him that the application had to be submitted to VFS, the Global Visa Processing Company that handles the administration of most routine visa applications in India. Tsering was of the view that that was not the appropriate route for a high profile person such as the Dalai Lama where after further discussions followed.

[9] By 7 September 2011, the application had still not been processed. In an attempt to finalise the application, advocate Dumisa Ntsebeza, the chairperson for the Desmond Tutu Peace Centre (the Centre), approached Mr Ebrahim, the Deputy Minister of International Relations and Cooperation. This intervention also proved fruitless.

[10] On 8 September 2011, following further discussion with the High Commissioner and other officials, Tsering re-submitted the application. The Dalai Lama's original passport was not included in the documents submitted on 8 September, because, at the time, he was on an extended visit to Canada, Brazil and Argentina.

[11] However, on 20 September 2011, Tsering delivered the original passport to the office of the South African High Commissioner following the Dalai Lama's return to India. On the same day, Tsering also paid the required visa fee.

[12] On 26 September 2011, in response to the unfortunate sequence of events described above, the Centre unsuccessfully attempted to file a visa application on behalf of the Dalai Lama in Cape Town. Officials in Cape Town cited the Dalai Lama's apparent failure to have made application in New Delhi for the refusal.

[13] It is so that the Dalai Lama required 1 day to travel from his residence to the nearest airport. Therefore, between 20 September 2011 and 4 October 2011, representatives of the Centre, the Human Rights Watch and the Dalai Lama had regularly enquired into the progress in processing the Dalai Lama's application.




[14] Eventually, on 4 October 2011, the Dalai Lama, in considering the time required to travel to the airport, formed the view that time had effectively run out and withdrew his application.







THE RELIEF SOUGHT




[15] It is against that background that the applicants contend that there was a constructive refusal to grant the application. They seek the following relief:

"1. Reviewing and setting aside the failure of the Respondents, and/or of officials employed by the Respondents, to properly and lawfully process, consider and make a decision on the application for an appropriate visa as contemplated by the Immigration Act 13 of 2002 ("the Act") ...;

2. Declaring that the conduct of the Respondents, and/or of officials employed by the Respondents, in failing to properly and lawfully process and make a decision on the application for an appropriate visa as contemplated by the Act by the Dalai Lama ("the refusal decision"), was inconsistent with the Constitution of the Republic of South Africa, 1996 ("the Constitution") and invalid, to the extent that:

2.1. The refusal decision was unreasonably and unlawfully delayed in the circumstances;

2.2. The refusal decision was ultra vires the Act;

2.3. The First Respondent acted unreasonably and unconstitutionally under direction of the Third Respondent;

2.4. The First Respondent took the refusal decision with an ulterior purpose and bias;

2.5. The refusal decision failed to take into account relevant considerations and/or took into account irrelevant considerations;

2.6. The refusal decision was vitiated by a material mistake of law;

2.7. The refusal decision unjustifiably violated constitutional rights;

2.8. The refusal decision was inconsistent with the values of openness and transparency and the Constitution; and

2.9. The refusal decision was inconsistent with South Africa's international law obligations.

3. Ordering the Respondents, jointly and severally the one paying the other to be absolved, to pay:

3.1. The First Applicant's costs, including the costs incurred by the employment of two counsel;

3.2. The Second Applicant's costs, including the costs incurred by the employment of two counsel."




[16] The granting or refusal of an application for a temporary visa constitutes administrative action. Thus, this court may review and set aside such action and grant an order that is just and equitable and may, in exceptional circumstances substitute, vary or correct a defect resulting from administrative action or direct the administrator to perform in terms of section 8(2) of PAJA.




[17] The section provides as follows:

"Section 8 (2)

(2) The court or tribunal, in proceedings for judicial review in terms of section 6 (3), may grant any order that is just and equitable, including orders -

(a) directing the taking of the decision;

(b) declaring the rights of the parties in relation to the taking of the decision;

(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or




(d) as to costs."

[18] In granting such an order, the court will give effect to the rights entrenched in section 33 of the Constitution, Act 108 of 1996.

"33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must -




(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and

(c) promote an efficient administration."

[19] I accept that a delay in taking a decision could, in appropriate circumstances, amount to a refusal to take the decision. The remedy in such a case would be to approach the court for an order directing the relevant authority to make the decision or such other relief as may be appropriate in the circumstances. However, in the light of the approach which I have adopted in the present dispute, it is unnecessary to determine this question.




NO LIVE CONTROVERSY - MOOTNESS




[20] On 4 October 2011, the Dalai Lama withdrew his application and the events that he intended to attend have long passed. The applicants have indicated that they have invited him to attend events in South Africa in March 2012 but there is no evidence that the Dalai Lama has accepted or even intends to accept their invitation.

[21] It follows that there is no longer an "existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law." (See National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC) at paragraph [21] footnote 18 )

[22] Notwithstanding this factual situation, a court has discretion to hear an application despite it being moot. (See Currie and De Waal: The Bill of Rights Handbook (5th Edition) at 95).




[23] In Independent Electoral Commission v Langeberg Municipality

2001(3) SA 925 (CC) at paragraph [9] the Court held:

"In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others Ackermann J said:

'A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.'

Even though a matter may be moot as between the parties in the sense defined by Ackermann J that does not necessarily constitute an absolute bar to its justiciability. This Court has a discretion whether or not to consider it. Langa DP, in President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others, throws some light on how such discretion ought to be exercised. The conclusion in that judgment is that s 172(2) of the Constitution does not oblige this Court to hear proceedings concerning confirmation of orders of unconstitutionality of legislative measures which have since been repealed but has a discretion to do so and 'should consider whether any order it may make will have any practical effect either on the parties or on others'. The reasoning is equally applicable to this appeal."


[24] At paragraph [11], the Court then described the exercise of its discretion as follows:

"... That discretion must be exercised according to what the interests of justice require. A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity and the fullness or otherwise of the argument advanced.







[25] Applying these considerations to the present matter, it is apparent that the withdrawal of the visa application, the absence of the Dalai Lama as an applicant in this matter, the fact that the events he intended to attend have taken place and the absence of his response to the new invitation are material factors that must influence the decision whether to consider the application, despite the matter being moot.




[26] Mr Katz SC, who appeared with Mr Simonsz for the first applicant, relied on the decision in MEC for Education, KwaZulu-Natal, and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC) as authority for the proposition that we should exercise our discretion in favour of the applicants and entertain the merits of the matter, despite its mootness. I accept that Pillay is authority for the proposition but I am of the view that it is distinguishable from the current matter.




[27] The applicant in Pillay unsuccessfully sought permission to have Ms Pillay wear a nose-stud to school in contravention of the school's code of conduct. The applicant alleged that the nose-stud was worn in observance of a religious practice. The applicant unsuccessfully sought relief on the basis of unfair discrimination in the Equality Court. The applicant successfully appealed the Equality Court's finding. The High Court, seized with the appeal, found that there was indeed unfair discrimination. Pursuant to the appeal, the school applied for leave to appeal directly to the Constitutional Court.

[28] That application was resisted on the basis that the matter had become moot because Ms Pillay had by then left school and the National Department of Education had introduced new guidelines for school uniforms. Therefore, so the argument went, any decision which that Court would take would have no relevance to the then applicable regime.

[29] The Court found that the matter was moot because Ms Pillay had left school but exercised its discretion to consider the matter. It advanced the following reasons for its decision at paragraph [35].

"As already noted this matter raises vital questions about the extent of protection afforded to cultural and religious rights in the school setting and possibly beyond. The issues are both important and complex, as is evidenced by the varying approaches of the courts below as well as courts in foreign jurisdictions. Extensive argument has been presented, not only from the parties but [also] from three amici curiae. There is accordingly no doubt that the order, if the matter is heard, will have a significant practical effect on the school and all other schools in the country, although it will have no direct impact on Sunali. It is therefore in the interests of justice to grant leave to appeal."

[30] In the current matter, there are no conflicting court orders as faced the court in the Pillay matter. Similarly, we do not have cultural or religious issues that could surface in similar applications. Mr Du Plessis, counsel for the second applicant, described the visa application and, in his view the refusal that forms the subject of this matter as "the most important this year." The delay was occasioned by the South African government's concern for the possible negative implication the granting of the application might have for the trade relations between it and the People's Republic of China. However, it is arguable that the profile of the Dalai Lama makes it unlikely that similar controversy will arise in other visa applications. In any event, every visa application, including any future visa application by the Dalai Lama, must be considered in accordance with the law; hence the importance of a decision that is no longer live cannot, without more, be converted into one that necessitates court intervention.




[31] The applicants further relied on the matter of Mohamed and Another v President of the RSA and Others 2001(3) SA 893 (CC) for its submission that the matter was not moot and/or that we should exercise our discretion in their favour and consider the matter despite it being moot.

[32] In Mohamed, the South African government had unlawfully handed over Mr Mohamed to the United States (US) authorities for prosecution on capital charges in connection with the bombing of the US embassy in Dares Salaam, Tanzania, in August 1998. Mr Mohamed, if convicted, would have faced the death penalty. The appellants, who included Mohamed, sought a declaratory order expressing disapproval of the arrest, detention, interrogation and transfer of Mr Mohamed to the FBI agents, and further sought an order requiring the South African Government to intercede with the US authorities regarding the wrong done to Mr Mohamed.




[33] The Mohamed matter is distinguishable from the current dispute. Mr Mohamed faced the death penalty in the US and appropriate relief could have affected his fate. In contrast, the Dalai Lama withdrew his application. As noted already, there is no indication that he intends to accept the new invitation extended to him. The State acted unlawfully in the Mohamed matter and, on that basis alone, it would have been in the interests of justice to consider the matter. In any event, the matter had to be considered because it was not moot, as is made clear in paragraph 70 of the judgment where the Court said:

"We disagree. It would not necessarily be futile for this Court to pronounce on the illegality of the governmental conduct in issue in this case. In the first instance, quite apart from the particular interest of the applicants in this case, there are important issues of legality and policy involved and it is necessary that we say plainly what our conclusions as to those issues are. And as far as the particular interests of Mohamed are concerned, we are satisfied that it is desirable that our views be appropriately conveyed to the trial Court. Not only is the learned Judge presiding aware of these proceedings, but the very reason why they were instituted by the applicants was said to be that our findings may have a bearing on the case over which he is presiding.

On the papers there is a conflict of opinion between one of the defence lawyers on the one hand and a member of the prosecution team on the other, both of whom have filed affidavits expressing their respective views as to the admissibility and/or cogency in the criminal proceedings of any finding we might make. It is for the presiding Judge to determine such issues.

For that purpose he may or may not wish to have regard to disputed material such as our findings. It is therefore incumbent on this Court to ensure as best it can that the trial Judge is enabled to exercise his

judicial power in relation to the proceedings in this Court; and an appropriate order to that end will be made."

[34] Allegations of disregard for human dignity and the rights entrenched in the Constitution have been levelled against the respondents in various matters before the courts. However, the courts have been unanimous in condemning such behaviour where the circumstances have justified it. But this case turns on its own peculiar facts. Furthermore, there is therefore no reason to fear that our courts would not in future, in appropriate circumstances, come to the Dalai Lama's or any other aggrieved visa applicant's aid, should he or she approach the court. However, given the nature of this case, the relief sought would have no practical effect.

[35] It follows that the interests of justice do not permit the exercise of this court's discretion in favour of the applicants to consider the matter despite its mootness. As indicated in the preceding paragraph, any order that this court may make would have no practical effect on the Dalai Lama or any current or prospective applicant because of the peculiar facts of this matter. The importance of the issue is affected by the withdrawal of the application and the passage of time; the events the Dalai Lama intended to attend took place a long while ago. The criteria for granting visa applications are well-known and do not involve any complex legal issues. Although the parties have addressed this court fully on mootness and the merits, it does not justify this court giving advisory opinions on abstract propositions of law.







THE AMICI CURIAE




[36] The amici curiae made submission in respect of the merits; for the reasons stated above, it is not necessary to deal with the merits. I am of the view that no order as to costs should be made in respect of the amici curiae.








CONCLUSION




[37] For the reasons stated above, the application stands to be dismissed with costs, such costs to include the costs occasioned by the employment of 2 counsel. Therefore, I make the following order:




(a) The application is dismissed.

(b) The applicants are ordered to pay the respondents' costs jointly and severally the one paying the other absolved, such costs to include the costs of 2 counsel










Baartman J










I concur










Davis, J












[1] I have had the pleasure of reading the judgment of my sister Baartman J I agree with the order she proposes and her justification therefore. However, I consider it appropriate, in the light of the very helpful arguments presented by counsel and the issues raised to explain my own reasoning for so concurring.










[2] The decision that the application in this case is moot and that, further, this court should not exercise a discretion to entertain the application, is not one of which I arrive lightly. Applicants contend correctly that there are a number of disturbing features which emerge from the papers. As noted by Baartman J, the Dalai Lama's representative was given incorrect advice as to the period from which a valid visa begins to run. Instead of being informed that the period, for which the visa is valid, commences upon it being presented at a South African port of entry, it appears that the South Africa High Commission in India informed the Dalai Lama's representatives that, once issued, the visa would only be valid for a three months period; hence the advice given to the Dalai Lama to apply much later than was his initial intention. That advice is contrary to the legal position. See, in particular, Regulation 9 (6) of the Immigrations Regulations: Government Gazette Volume 475: 31 January 2005 which makes it clear that the three month period commences upon first entry.




[3] A further concern turned on a significant difference between the version proffered by the second respondent and the first respondent as to the cause of the delay in making a decision about the application. Both respondents emphasised that a visit from the Dalai Lama held potential economic implications for South Africa. In particular, both respondents contended that a visit from the Dalai Lama could impair South Africa's important trade relations with China. Thus, second respondent impressed upon the court the importance of the relationship between South Africa and China:


"The Peoples' Republic of China offers vast export opportunities and the potential to absorb a high proposition of value added exports from South Africa. In the light of the mutual benefit that emerged from comparable levels of industrial development, the People's Republic of China also offers unique opportunities in terms of investment, joint ventures, and technology transfer for South Africa. The People's Republic of China therefore remains a strategic partner for South Africa in the Asia region."

For these reasons, both respondents informed the court that the first respondent was required to consult with her cabinet colleagues before deciding upon the application for a visa by the Dalai Lama. Second respondent said of this process:

"The Minister sought the views of her cabinet colleagues to ensure that her efforts would not have unintended impact on their functions. Those views were advanced. She accepted them and went about the business of applying her mind to the applications lodged. The notice of withdrawal was communicated to her during this process of consideration."




By contrast, first respondent avers:

I was awaiting the views that I have requested from official and the department of state that if a direct and substantial interest in the visit of the Dalai Lama to our country, particularly DIRCO (Department of International Relations Cooperation's). When I was advised that he and the members of his entourage had withdrawn their applications for visas."










[4] These are mutually contradictory versions, yet both were placed, without any explanation, by the respondents before the court pursuant to this application.










[5] In dealing with the legal basis by which economic relations with China could constitute a reason for a refusal of a visa, Mr Moerane who appeared together with Mr Sibeko and Ms Gcabashe on behalf of the respondents, relied on section 85 (2) (a), (b) and (c) of the Republic of South Africa Constitution Act 108 of 1996, to locate this power. Both Mr Katz and Mr Du Plessis contended that first and second respondents had no power outside of the provisions of the Immigration Act to allow or refuse entry into a country. Thus, all decisions regarding the entry or refusal of an applicant for a visa must find its source and scope in the Immigration Act. In this connection, they referred to the decision of Mohammed at para 32:

''Accordingly, the state's power to report relevant to the present case can be derived only from the provisions of the Act."













[6] The crisp point was that decisions of this nature must be grounded in law and that the applicable law provides no basis for the only reasons offered by respondent for possibly not granting a visa. In this connection a failure to make a decision expressly falls within the definition of decision under the Promotion of Administrative Justice Act 3 of 2000.










[7] Applicants examined the balance of the Act in order to show the limitations of respondents' power. Section 10 A (3) of the Immigration Act 13 of 2002 (the Act'), which provides first respondent with a discretion to grant a visa, must be read in terms of the Act as a whole. Section 29 of the Act, sets out a category of foreign persons who are prohibited and therefore do not qualify for a visa. A decision in terms of section 29 will generally be made as a result of information which an applicant for a visa is required to provide as requested in completing form 11 to the Immigration Regulations. Section 30 of the Act states that certain foreigners may be declared undesirable by the second respondent and thereafter would fail to qualify for a visa.













[8] A reading of sections 29 and 30 of the Act, in the view of applicants, makes it clear that the Act contains no provision by which first respondent is entitled to consider additional factors in refusing a visa and, in particular, questions of trade relations. On the basis of this argument, if respondents consider that such a factor should be taken into account, the Act will require an amendment.













[9] These are powerful and persuasive arguments which, in the ordinary course, would require a decision from this court. However, notwithstanding the attempts of the applicants and the amici to extend the range of this dispute and therefore argue that the application holds more general implications than that of this single application for a visa, albeit by a Nobel Prize laureate, the factual matrix of the application is predicated exclusively upon the particular facts of the Dalai Lama. As matters stand, he is no longer an applicant for a visa and, notwithstanding suggestions about a further invitation, he has not indicated that he will be an applicant in the near future. To decide this case on the basis of these facts would be to generate an invitation for applicants to procure legal advice from the courts, and would extend the exercise of the discretion to entertain a moot application way beyond the existing case law, meticulously analysed by Baartman J.

DAVIS J






13

http://www.saflii.org/za/cases/ZAWCHC/2012/3.html

Havard and Another v Minister of Home Affairs (exhaust internal remedies before going to court)

Havard and Another v Minister of Home Affairs and Others (33431/2011) [2011] ZAGPJHC 128 (30 September 2011)

---

REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 33431/2011

DATE:30/09/2011

In the matter between:

XAIOMEI HAVARD …................................................................ First Applicant

HAILIN CAI.............................................................................Second Applicant

and

THE MINISTER OF HOME AFFAIRS....................................First Respondent

THE IMMIGRATION OFFICER IN CHARGE

OF OR TAMBO INTERNATIONAL AIRPORT

DEPORTATION CELLS....................................................Second Respondent

THE MINISTER OF TRANSPORT......................................Third Respondent

THE DIRECTOR GENERAL, DEPARTMENT

OF HOME AFFAIRS........................................................... Fourth Respondent

THE AIRPORT COMPANY OF SOUTH AFRICA...............Fifth Respondent

EMIRATE AIRLINES..............................................................Sixth Respondent

ANALYTICAL RISK MANAGEMENT

INTERNATIONAL............................................................ Seventh Respondent

J U D G M E N T

Summary: Illegal foreigner – Judicial review of decision to declare applicant illegal foreigner – such not permissible prior to applicant exhausting internal remedy contained in s 8(2)(a) of Immigration Act 13 of 2002

WEPENER, J:

[1] The second applicant (referred to as the applicant) launched an application on an urgent basis to prevent his deportation from the Republic of South Africa (the Republic) pending a review by this Court of the “decision of the respondents” declaring the applicant to be an illegal immigrant.

[2] The first respondent is the Minister of Home Affairs. The second respondent is the “Immigration Officer in charge of the OR Tambo International Airport Deportation Cells”. The third respondent is the Minister of Transport. The fourth respondent is the Director General, Department of Home Affairs. The fifth respondent is the Airport Company of South Africa. The sixth respondent is Emirate Airlines, the conveyor referred to below, and the seventh respondent is Analytical Risk Management International.

[3] When by brother Meyer J called the matter on 27 September 2011, only the founding affidavit was before him and in the light of the allegations contained therein, he ordered that the applicant not be deported pending the outcome of this application. As a result of the uncertainty as to in whose custody the applicant was, Meyer J also ordered the joinder of additional respondents who, it was thought, could be parties in charge of the applicant where he is held in custody. He further ordered that the applicant be given access to his legal representatives.

[4] When the matter came before me on 28 September 2011 the applicant’s legal representatives had still not been allowed access to him and on the strength of the affidavit filed by the first and fourth respondents I ordered the joinder of the seventh respondent, being the entity which keeps the applicant in custody pending the further development of the matter. The further assistance to the legal representatives to gain access to the applicant are not relevant for purposes of this judgment as they consulted him and filed a “replying affidavit” made by him. Although the affidavit is not attested, Ms Manaka agree that I should have regard to the matters therein contained as if it were contained in an affidavit.

[5] Pursuant to the above the applicant filed a replying affidavit and the matter proceeded before me on 30 September 2011.

[6] It was common cause that, upon the applicant’s arrival at the OR Tambo International Airport, the officials in the employ of the first and fourth respondents (the Department of Home Affairs) issued a notice of refusal of entry into the Republic to the applicant. The applicant’s refusal to sign receipt of the document when it was presented to him is of little moment.

[7] The document was issued pursuant to s 34(8) of the Immigration Act 13 of 2002 (the Immigration Act) and informs the applicant that he is, inter alia, an illegal foreigner and the conveyer responsible for his conveyance to the Republic will be responsible for his removal from the Republic. He was also informed that he may appeal to the fourth respondent against the decision to refuse him entry into the Republic. It appears that when such notice of refusal of entry is issued a foreigner, he is then handed to the fifth respondent who utilises the services of the seventh respondent, the latter who keeps the foreigner in custody pending further developments.

[8] OR Tambo International Airport is a place designed as such by the first respondent for all persons to report before they may enter, sojourn or remain within, or depart from the Republic.

[9] The role of immigration officers stationed at OR Tambo International Airport is to efficiently facilitate, administer and manage entry and departure of all persons at that port of entry.

[10] The second applicant is held pending removal in an Inadmissible Facility situated inside OR Tambo International Airport but before a port of entry facilitated, administered and managed by immigration officers.

[11] The Inadmissible Facility is a Facility established in terms of Annexure 9 of the International Civil Aviation Organization (“ICAO”). It embodies, inter alia, the Standards and Recommended Practices (“SARP’s”) and guidance material pertaining specifically to facilitation of landside formalities for clearance of aircraft and passengers. Annexure 9 provides a frame of reference for planners and managers of international airports operations, describing the obligations of industry as well as minimum facilities to be provided by governments.

[12] ICAO is established in terms of article 43 of the Convention on International Civil Aviation drawn up in Chicago on 7 December 1944, as set out in Schedule 3, and includes any amendments and additions ratified and proclaimed in accordance with section 3(1)(b) (“the Convention” commonly known as “the Chicago Convention”). The Convention has been given effect by Chapter 2 of the Civil Aviation Act 13 of 2009 which came into operation on 31 March 2010.

[13] This facility is established in terms of the international law and it is a transit facility utilised by airlines to accommodate passengers who are supposed to be removed from the Republic for various reasons, including instances such as the present.

[14] OR Tambo International Airport is a public premises owned by the fifth respondent. The facility, which is situated at OR Tambo International Airport is administered by the fifth respondent and operated or managed on a day to day basis by the sixth respondent, a private company contracted by the fifth respondent. The applicant’s reliance on Abdi and another v Minister of Home Affairs and other 2011 (3) SA 37 (SCA) at par 30, is misplaced as the facts set out in this matter fully disclose the role of each of the respondents whilst the factual issue was not properly canvassed in Abdi. Be that as it may, all parties who may possibly be involved in the detention of the applicant have been joined in these proceedings.

[15] Ms Manaka, appearing on behalf of the first and fourth respondents, argued, in limine, that pursuant to the provisions of the Immigration Act the applicant was prohibited from obtaining the relief sought herein. There are four sections that are relevant.

[16] Section 34(8) provides:

“A person at a port of entry who had been notified by an immigration officer that he or she is an illegal foreigner or in respect of whom the immigration officer has made a declaration to the master of the ship on which such foreigner arrived that such a person is an illegal foreigner shall be detained by the master on that ship and, unless such master is informed by the immigration officer that such person has been found not to be an illegal foreigner, such master shall remove such person from the Republic, provided that an immigration officer may cause such person to be detained elsewhere than on such ship, or be removed in custody from such ship and detain him or her or cause him or her to be detained in the manner and at a place determined by the Director-General.”

[17] Section 34(9) provides:

“The person referred to in the preceding subsection shall, pending removal and while detained as contemplated in that subsection, be deemed to be in the custody of the master of such ship and not of the immigration officer or the Director-General, and such master shall be liable to pay the costs of the detention and maintenance of such person while so detained if the master knew or should reasonably have known that such person was an illegal foreigner, provided …”

[18] Section 8(1)(a) provides:

“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 if he or she arrived by mean 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.”

[19] Section 8(2)(a) of the Immigration Act provides:

“A person who was refused entry or was found to be an illegal foreigner and who was requested a review of such a decision 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.”

[20] On 26 September 2011 the applicant was conveyed to the Republic by the sixth respondent. He presented a passport bearing number G40372807 to the immigration officer. According to the passport there was only one endorsement indicating a departure stamp from OR Tambo International Airport dated 31 July 2011 with comment “Refer to AK upon arrival”. There was no permit or a visa in the passport.

[21] For this reason, and further reasons dealt with below, the second applicant was refused entry and issued with a notice in that regard. He refused to sign an acknowledgement of receipt of this notice.

[22] The immigration officer also issued a declaration to the representative of sixth respondent informing it that the second applicant has been refused entry into the Republic on the grounds that he is an illegal foreigner.

[23] In addition, the second applicant was issued with a notification regarding his rights to request the first respondent to review the decision of the immigration officer. The immigration officer explained to him that should he wish to lodge a review, he should do so immediately and depart to await the outcome outside the Republic. The second applicant, once again, refused to sign the acknowledgement of receipt thereof. The tasks performed by the immigration officials are part of the wider regulation of foreigners’ visits to the Republic.” The Immigration Act has as its objective the important task of regulating the admission of foreign nationals to, the residents in, and their departure from South Africa.” See Koyabe and Others v Minister of Home Affairs and Others 2010 (4) SA 327 (CC) at par 50.

[24] The applicant did not avail himself of the review procedure. Having regard to the provisions of s 7(2)(a) of the Promotion of Administrative Justice Act No. 3 of 2000 (PAJA), the applicant is obliged to exhaust his internal remedies (the review to the Minister) prior to asking a court to review the decision to declare him an illegal foreigner. In this regard Koyabe said at paras 35, 36 and 54 as follows:

“35. Internal remedies are designed to provide immediate and cost-effective relief, giving the executive the opportunity to utilise its own mechanisms, rectifying irregularities, first, before aggrieved parties resort to litigation. Although courts play a vital role in providing litigants with access to justice, the importance of more readily available and cost-effective internal remedies cannot be gainsaid.

36. First, approaching a court before the higher administrative body is given the opportunity to exhaust its own existing mechanisms undermines the autonomy of the administrative process. It renders the judicial process premature, effectively usurping the executive role and function. The scope of administrative action extends over a wide range of circumstances, and the crafting of specialist administrative procedures suited to the particular administrative action in question enhances procedural fairness as enshrined in our Constitution. Courts have often emphasised that what constitutes a “fair” procedure will depend on the nature of the administrative action and circumstances of the particular case. Thus, the need to allow executive agencies to utilise their own fair procedures is crucial in administrative action. In Bato Star, O Regan J held that:

“a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branched of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected by the decision-maker.”

. . .

54. The internal remedies under section 8 of the Act illustrate the value and importance of a tailored remedial structure designed to cure a specific administrative irregularity. On the one hand, a finding that a person who has entered a country to stay for specific purposes is an illegal foreigner has a material and adverse effect on that person. It is therefore in his or her interest that the decision be reviewed speedily to ensure its correctness and fairness. The state, on the other hand, has a legitimate interest in the security of its borders and the integrity of its immigration system and must take reasonably speedy yet constitutionally compliant steps to resolve questions about the legality of the presence of foreign nationals in its territory.”

[25] As a result of the operation of law, a judicial review of the decision to declare him an illegal foreigner is not competent prior to the completion of the administrative task of the Minister, who may be in a better position to determine the disputed facts.

“Internal administrative remedies may require specialised knowledge which may be of a technical and/or practical nature. The same holds true for fact-intensive cases where administrators have easier access to the relevant facts and information. Judicial review can only benefit from a full record of an internal adjudication, particularly in the light of the fact that reviewing courts do not ordinarily engage in fact-finding and hence require a fully developed factual record.” (Koyabe, para 37)

[26] Because of the fact that the “duty to exhaust defers access to courts, …” (Koyabe at par 47), the applicant’s remedy is not a judicial review prior to a review being submitted to the first respondent.

[27] A judicial review is only competent if reliance can be placed on s 7(2)(c) of PAJA, which allows a court to exempt a person from exhausting an internal remedy in exceptional circumstances and if the court deems it in the interests of justice. “It is sufficient to emphasise that where the legislature has tailored a statutory remedy to address a specific administrative harm that remedy must be exhausted before resort is had to judicial review, under PAJA, unless exceptional circumstances exist.” (Koyabe para 55). No facts were placed before me to bring the matter within the ambit of s 7(2)(c) of PAJA and no argument was advanced that I can deal with the matter pursuant to the latter provisions. Indeed the provisions of s 8(2)(a) of the Immigration Act make it quite clear that the review can be pursued but that the applicant “shall await the outcome of the review outside the Republic”. In R v Secretary of State for Home Department, Ex Parte Swati [1986] 1 All ER 717 (CA) at 724a-b it was held:

“[E]xceptional circumstances defy definition, but, where Parliament provides an appeal procedure, judicial review will have no place unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.”

This test was not satisfied by the applicant in the matter under consideration. The prohibition against a court considering the matter at this stage is generally referred to as deferring a complainant’s access to court-based remedies. See Hoexter: Administrative Law in South Africa and the authorities referred to at p 478.

[28] There are indeed no exceptional circumstances favouring the applicant. On the contrary there are factual disputes on the papers regarding the status of the applicant and these disputes will be more efficiently dealt with by the Minister in the event of the applicant launching a review of the decision to declare him an illegal foreigner. (Koyabe para 37).

[29] I summarise the respondents’ case, which, in my view, is clearly indicative of the fact that the applicant’s version is open to some serious doubt, if not wholly untenable. Upon the applicant’s arrival he presented a Chinese passport (the new passport) to the employers of the first respondent and this passport had no permit endorsed in it which would allow him lawful entry into the Republic. When the immigration official advised the applicant that he needs a South African visa or permit to be admitted into the Republic the applicant produced another passport (the old passport). The following observations were made from the old passport. There is a transit stamp from OR Tambo International Airport dated 7 May 2010 (the applicant was never admitted into the Republic). There are no records of the applicant entering or departing from the Republic prior to 31 July 2011 in the old or new passport. The only inference from this is that if the applicant had entered the Republic in the past, such entry was illegal. This also refutes an allegation supported by a copy of a letter attached to the founding affidavit that the applicant commenced working for a company in the Republic during February 2010. I will return to the letter.

[30] On the same day i.e. 7 May 2010 there is a visa and an entry stamp from Mozambique.

[31] There is also an extension of a temporary residence permit issued on 22 February 2010 at Germiston, entitling the applicant to take up employment with Viterbo Trading CC. This permit suggests that the applicant was once issued with a similar permit prior to 22 February 2010, hence an extension in February 2010. There is an omission on the part of the applicant in his affidavit when dealing with the page of the passport in which the original permit was endorsed. The permit does not appear to be from the Movement Control System the latter which is used by the first respondent for control purposes. The relevance of the reference to the alleged extension of the temporary residence permit lies in the contradictory fact relied upon by the applicant i.e. that he “acquired” a residence permit.

[32] The old passport contains an endorsement purporting to be a South African visa issued on 3 August 2010 and the expiry date appears to be 3 March 2010. Ex facie the endorsement the visa expired before it was issued. In addition, according to the government printers, the control number A13876821 was issued to Harare/Zimbabwe and not Shanghai as is reflected on the endorsement in the applicant’s passport.

[33] An entry stamp dated 12 August 2010 is also observed in the old passport. This endorsement suggests that the applicant entered the Republic for the first time on 12 August 2010 via Mahamba, a port of entry situated in Swaziland. The problem though, is that the word passport on the stamp is misspelt. It appears to be “Pasport” and the font is lighter than the norm. These discrepancies suggested to the employees of the first and fourth respondents that the stamp itself is not genuine. There are no records in his old and new passports accounting for the applicant’s movement from Mozambique to Swaziland.

[34] Nevertheless, the purported South African visa expired on 3 March 2010 or 3 August 2010. If it is accepted that the applicant indeed entered the Republic on 12 August 2010 as indicated in his passport, then he still entered and remained in the Republic in contravention of the Immigration Act and thus he was an illegal foreigner liable to deportation.

[35] Attached to the applicant’s founding affidavit is a copy of a letter dated 30 July 2011 purportedly written by a company that he worked for. It purports to confirm that the applicant had been working at the company since February 2010 and refers to the fact that the applicant had applied for a “replacement passport”. But, the replacement passport was only applied for two months after the date of the letter and reference to such replacement passport therein cannot be true.

[36] There is sufficient evidence suggesting that, what purports to be a permit entitling the applicant to enter and sojourn in the Republic, is a fraudulent document.

[37] The applicant filed a replying affidavit, which in my view exacerbates his problems. It raises a large number of disputes and also shows an inability by the applicant to explain certain discrepancies, which I am not able to resolve without evidence and cross-examination. Applying the well-known principles of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623A, I am required to have regard to the version of the respondents and not to the disputed the version of the applicant,

[38] Indeed, counsel for the applicant conceded, correctly in my view, that the absence of explanations by the applicant regarding the validity of the number of his passport and the entry stamp in the passport purportedly obtained when entering the Republic from Swaziland, remain obstacles which the applicant has not overcome.

[39] Two further examples suffice. According to the applicant he obtained a visa on 3 August 2010, which visa was valid for 90 days. This makes no sense as, according to the applicant, he already obtained a temporary residence permit in February 2010, which renders the application for a visa unnecessary. In addition, the applicant alleges that he entered the Republic on 12 August 2010 from Swaziland. But the temporary residence permit was allegedly extended on 12 February 2010, which is the date prior to his alleged entry into the country. The visa which he relies on for this entry was issued in Shanghai and not in Swaziland.

[40] Against this background the applicant was declared an illegal foreigner and refused entry as referred to hereinbefore.

[41] Sixth respondent having been the conveyer responsible to convey the applicant to the Republic took custody of the applicant for purposes of removing him from the Republic. The sixth respondent placed the applicant in what is referred to the Inadmissible Facility at OR Tambo International Airport pending his removal from the Republic.

[42] On 27 September 2011 at 13h00 and 20h00 respectively, the applicant pretended to be unconscious at the time that he was supposed to board an aircraft of the sixth respondent to convey him. These latter actions of the applicant are rather suspicious and appears to be another ploy to enter the Republic illegally. I am of the view that the Minister would be in a better position to determine the facts after thorough investigation, should the applicant decide to review the decision to refuse him entry into the Republic. Indeed, if the allegations made on behalf of the first and fourth respondents are correct, there may be a well planned scheme afoot to forge documents in order to bring foreigners illegally into the Republic.

[43] In all the circumstances and, in addition to the point in limine, which I have held to be a bar to the applicant’s approach to court for relief, the case made out by the applicant is so inadequate, vague and, on the face of it, deceitful that he would not be entitled to any relief even if I had to find that there are exceptional circumstances to hear a review despite the applicant not having exhausted his internal remedy.

[44] As a last resort the applicant’s counsel, in replying argument, relied on Lan v O R Tambo Airport Department of Home Affairs 2011 (3) SA 641 (GNP) at par 41-55 where it was held at par 55 that the detention and the refusal to admit the applicant were unlawful and ultra vires. However, not a single fact was shown by applicant’s counsel why the actions of the officials of the Department of Home Affairs were allegedly unlawful and, on the version of the first and fourth respondents, no such facts are apparent to me. Lan consequently finds no application in this matter.

[45] In all the circumstances the applicant has not shown that exceptional circumstances exist for him to proceed directly with judicial review. The applicant has not yet exhausted the available internal remedy under s 8(1) of the Immigration Act and ought not to have instituted judicial proceedings in this Court. Section 7(2)(b) of PAJA provides:

“Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.”

[46] In the light thereof, I direct that the applicant must first exhaust his internal remedy of review to the first respondent before proceedings may be instituted in a court.

[47] Having regard to all the circumstances the application is dismissed with costs.

___________________________

W L WEPENER

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

COUNSEL FOR APPLICANT......................PJC Kriel

INSTRUCTED BY...........................................Saleem Ebrahim Attorneys

COUNSEL FOR RESPONDENTS N …......Manaka

INSTRUCTED BY …......................................State Attorney

DATE OF HEARING ….................................27, 28, 29 and 30 September 2011

DATE OF JUDGMENT.................................30 September 2011

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