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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)           REPORTABLE:  NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED.   

DATE: 1 December 2020

 

                                                       Case No: 10938/20

In the matter between:

 

 

GIBSON BORIS TAWODZERA                                                                      Applicant

 

and

 

THE MINISTER OF HOME AFFAIRS                                                          First Respondent

 

DIRECTOR GENERAL,

DEPARTMENT OF HOME AFFAIRS                                                            Second Respondent

 

JUDGMENT

 

WILSON AJ:

 

1                The applicant (“Mr. Tawodzera”) seeks an order declaring three decisions taken by or on behalf of the second respondent (“the Director-General”) unlawful and invalid. These decisions led to his deportation from South Africa to Zimbabwe. He also seeks a declaration that his deportation was itself unlawful and invalid, consequential relief declaring him entitled to re-enter South Africa, and an interdict restraining the respondents from preventing him from doing so.

2                It is necessary, out the outset, to record the sometimes eccentric chain of events that led up to Mr. Tawodzera seeking this relief, before going on to consider whether he is entitled to it.

The facts

3                Mr. Tawodzera is a Zimbabwean citizen. He entered South Africa in 2000. On 14 October 2002, he married Bongiwe Sombudla (“Ms. Sombudla”). Ms. Sombudla was a South African citizen.

4                On 12 March 2003, section 26 (b) of the Immigration Act 13 of 2002 (“the Act”) came into effect. On 3 May 2004, the Director-General, exercising his powers under section 26 (b) of the Act, issued Mr. Tawodzera with a permanent residence permit. Section 26 (b) of the Act, as it then read, empowered the Director-General to issue a permanent residence permit to any person who is the spouse of a South African, provided that the Department for Home Affairs is satisfied that “a good faith spousal relationship exists” and provided further that the permit will “lapse if at any time within three years from its application the good faith spousal relationship no longer subsists, save for in the case of death”.

5                On 1 July 2005, an amendment to section 26 (b) came into effect. That amendment made the acquisition of permanent residence by marriage more onerous. The amended section 26 (b) required a foreign spouse to have been married to a South African citizen or permanent resident for a period of at least five years, and provided that if the relationship was ended, other than by death, within two years of the issuing of a permanent residence permit, then the permit would lapse.

6                On 14 April 2006, Ms. Sombudla died. Mr. Tawodzera nonetheless retained his permanent residency status. This was because, his marriage having been terminated by Ms. Sombudla’s death, the earlier version of section 26 that applied when Mr. Tawodzera’s permit was issued provided that his permanent residence would not lapse.  

7                Almost thirteen years later, on 5 March 2019, the Department for Home Affairs sent a letter to Mr. Tawodzera recording that he acquired permanent residence by marriage, but alleging that “it appears that the marriage was fraudulent”. The letter went on to allege that Mr. Tawodzera’s permit “was therefore issued on a misrepresentation”. The letter drew Mr. Tawodzera’s attention to section 48 of the Act, which in essence records that an illegal foreigner is not exempted from the provisions of the Act simply because they did not know that they were unlawfully present in South Africa, or that their status as an illegal foreigner was undiscovered.

8                The letter then alleged that Mr. Tawodzera’s “right to permanent residence” had “lapsed”, but nonetheless invited Mr. Tawodzera to “make further representations in this regard”.

9                There is much that is unsatisfactory about this letter. The basis on which Mr. Tawodzera’s marriage is alleged to be “fraudulent” is not set out. Nor is the “misrepresentation” on which the permanent residence permit was said to be issued. One may surmise that the Department had, in the sixteen years since it had issued the permit, uncovered facts that might suggest that there was never a good faith spousal relationship. But what those facts were is not disclosed in the letter of 5 March 2019.

10             A related problem is that Mr. Tawodzera’s permanent residence permit is said to have “lapsed”. That allegation is unintelligible. The letter might make sense if the permit was said to have been invalid because the provisions of section 26 were not met at the time it was issued, or that the Director-General had decided to withdraw the permit. But to describe the permit as lapsed simply begs the question of how, and in terms of what provision, the permit “lapsed”.

11             The mystery deepens in Mr. Tawodzera’s written representations in response to the 5 March 2019 letter, which are dated 10 April 2019. In paragraph 5 of those representations, it is placed “on record that on or about 1 March 2019” Mr. Tawodzera was “intimidated into drafting an affidavit by one Mr. Matthews Motaedi, an employee of the Department for Home Affairs”. The affidavit was said to be “drafted and signed under protest”, without Mr. Tawodzera being given a copy. Nothing is said, however, about what the contents of that affidavit were, or how they bore on the issue of Mr. Tawodzera’s right to permanent residence.

12             The balance of the 10 April 2019 representations records the facts surrounding Mr. Tawodzera’s marriage to Ms. Sambudla, the issuance of his permanent residence permit, and the fact that Mr. Tawodzera obtained a South African identity document on 1 October 2004. The representations deny that the marriage was fraudulent, or that the permanent residence permit had “lapsed”.

13             A further eight months then passed. On 10 December 2019, the Department for Home Affairs contacted Mr. Tawodzera and informed him that an official would come and “pick him up” at his workplace at Nedbank in Sandton and take him to Pretoria to receive “the outcome” of his representations.

14             What really happened is that Mr. Tawodzera was arrested and charged with contravening section 49 (1) (a) of the Act. Section 49 (1) (a) of the Act provides that anyone who enters, remains in or departs from South Africa in breach of one of its provisions commits an offence, and is liable on conviction to a period of imprisonment not exceeding two years.

15             During his detention, Mr. Tawodzera was shown, for the first time, a copy of a letter written on behalf of the Director-General and dated 1 November 2019. The letter purports to be a response to Mr. Tawodzera’s written representations. It states that, those representations notwithstanding, “the Department is convinced” that Mr. Tawodzera’s marriage to Ms. Sombudla was “not valid for the purpose of obtaining Permanent Residence”. It states also that the Director-General did not rely on Mr. Tawozdera’s statement of 1 March 2020 in coming to that conclusion. The letter states that, in fact, “no statement of Mr. Tawodzera was used” to make its decision. Once again, there was no explanation of the basis on which it was alleged that Mr. Tawodzera’s marriage was fraudulent. 

16             On 10 December 2020, Mr. Tawodzera was issued with a notice of deportation under section 34 (1) (a) of the Act, which provides that a foreigner arrested for the purposes of deportation “shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act”. The notice purports to record that “after due consideration” Mr. Tawodzera had decided to “await his deportation at the first reasonable opportunity”, and to have his detention confirmed by a court, but had nonetheless decided not to appeal the decision to deport him.

17             I cannot, on a conspectus of all the facts, credit the proposition that Mr. Tawodzera’s response to the notice was to waive his right to appeal the decision to deport him. First, the notice records that he “refused to sign” it at the point just below where the waiver of the right of appeal is recorded. Secondly, given the vigorous attempts made on Mr. Tawodzera’s behalf to challenge the decision that his permanent residence had “lapsed”, made repeatedly and emphatically throughout this time, the proposition that Mr. Tawodzera waived his right of appeal is a wholly untenable inference.  

18             On 11 December 2019, Mr. Tawodzera appeared in the Pretoria Magistrates’ Court. The presiding Magistrate asked on what basis Mr. Tawodzera’s permanent residence permit was said to have been fraudulently obtained. The response, apparently given by the Prosecutor, was that it turned out that none of Ms. Sombudla’s relatives were aware of Mr. Tawodzera’s marriage to her. Mr. Tawodzera was bailed to re-appear on 14 January 2020.

19             Also on 11 December 2019, an Advocate A Ledwaba, who describes himself as the Head of the Department of Home Affairs’ Law Enforcement section, wrote to Mr. Tawodzera’s employer, alleging that Mr. Tawodzera “obtained his Permanent Residence Permit through misrepresentation”. The letter goes on to allege that this makes Mr. Tawodzera “a prohibited person” in terms of section 29 (1) (f) of the Act.  The letter demands that Nedbank immediately dismiss Mr. Tawodzera from his employment.

20             On 19 December 2019, Mr. Tawodzera lodged an appeal to the Director-General against the decision apparently contained in the letter of 1 November 2019. The appeal was substantially based on the proposition that the basis on which Mr. Tawodzera’s permanent residence permit was said to have lapsed had never been set out, and Mr. Tawodzera had not been given a meaningful opportunity to challenge the Department’s conclusion that it had.

21             On 23 December 2019, Mr. Tawodzera was summoned to appear before a representative of the Director-General at the Department of Home Affairs. The purpose of the appearance is described in the notice as “Monitoring – pending final outcome of your case (pending finalisation).” A further such “monitoring” appearance apparently took place on 7 January 2020 (the reference to 2019 in the notice must be a mistake). It follows that the summonses to appear on 23 December 2019 and 7 January 2020 had nothing to do with Mr. Tawodzera’s appeal. Neither Mr. Tawodzera nor the Director-General contend otherwise. The purpose of the appearances was to “monitor” Mr. Tawodzera, presumably to try to ensure that he did not simply abscond.

22             The appeal to the Director-General had accordingly met with no real response by 7 January 2020, when Mr. Tawodzera lodged a further appeal to the first respondent (“the Minister”). That letter repeated the allegation that Mr. Tawodzera had not been informed of the basis on which his permanent residence was said to have lapsed, had not been informed of the basis on which his marriage was said to be fraudulent, and had accordingly not been given a fair opportunity to address or respond to these allegations. It also pointed out that, in terms of section 26 of the Act, the Department had satisfied itself, shortly after the marriage was entered into, that a good faith spousal relationship existed between Mr. Tawodzera and Ms. Sombudla. On this basis, the Minister was asked to “withdraw the Director-General’s revocation” of Mr. Tawodzera’s permanent residence status.

23             The letter of 7 January 2020 contended that the appeals to the Director-General and to the Minister counted as representations made in terms of section 8 (2) (b) of the Act. That provision states that a person suspected of being an illegal foreigner “shall not be removed from the Republic before the Minister” has confirmed any determination taken by an immigration officer that a person present in South Africa (other than at a port of entry) is an illegal foreigner. In other words, section 8 (2) (b) of the Act provides limited procedural protection to a person who has already gained entry to the Republic, but has thereafter been determined to be an illegal foreigner. A person determined to be an illegal foreigner at a port of entry has no such protection, and must immediately leave South Africa, even if they wish to challenge the determination that they are an illegal foreigner.

24             On 14 January 2020, Mr. Tawodzera appeared once more at the Pretoria Magistrates’ Court. This time, he was detained pending deportation.

25             On 15 January 2020, Mr. Tawodzera was deported. An urgent application to prevent the deportation was struck from the roll by Raulinga J. I do not know whether Raulinga J gave reasons for that decision, but none formed part of the record before me. 

26             On 23 January 2020, Mr. Tawodzera’s attorney received an email from the office of the Director-General. It acknowledges receipt, some nine months later, of Mr. Tawodzera’s letter of 10 April 2019, and states that the matter had been referred to a Mr. Jackson McKay for “further attention and finalisation”. Counsel were unable to tell me what became of that referral.

27             These facts, gleaned substantially from the founding affidavit, are not disputed in the respondents’ answering affidavit. Other than argument, the answering affidavit adds but one new feature to the case: it discloses the contents of Mr. Tawodzera’s affidavit of 1 March 2019. This is the affidavit that it was alleged that Mr. Tawodzera made under duress.

28             Despite the mystery surrounding the contents of this affidavit in Mr. Tawodzera’s attorney’s letter of 10 April 2019, and the failure to deal with its contents in Mr. Tawodzera’s founding papers, the affidavit really takes the matter no further. This is so for two reasons. The first is that, by the Director-General’s own admission, the affidavit had no influence over the formation of the view that Mr. Tawodzera’s permanent residence permit had “lapsed”.

29             The second reason is that the affidavit does not add anything relevant to the case in any event. The only part of the affidavit the respondents seek to rely on is the discrepancy between the date on which Mr. Tawodzera said he entered the country in his founding affidavit (“early 2000”), and the date on which his entry and marriage to Ms. Sombundla is alleged in his affidavit of 1 March 2019 (“2004”). This is neither material, nor really a discrepancy, as, in the 1 March 2019 affidavit, Mr. Tawodzera suggests also that he occasionally entered South Africa on a visitor’s visa and returned to Zimababwe before 2004. There is nothing to suggest that there is any significance to be attached to the mistaken allegation in the affidavit that Mr. Tawodzera married Ms. Sombundla in 2004, and not 2002.

30             In any event, I emphasise that, on the respondents’ own version, the contents of the affidavit had no impact on the decisions assailed in this case.

31             This application was launched as a matter of urgency on 13 February 2020. On 20 February 2020, Mabuse J struck the matter from the roll for lack of urgency.

32             The matter was re-enrolled before me on 2 November 2020.

Mr. Tawodzera’s entitlement to relief

Standing

33             Mr. Tawodzera’s founding affidavit is deposed to by his attorney, (“Mr. Mudenda”). Mr. Mudenda purported to act on Mr. Tawodzera’s behalf “in terms of section 38 of the Constitution”. Section 38 standing was apparently claimed because Mr. Tawodzera has been deported, and was unable to depose to the affidavit himself.

34             Reliance on section 38 of the Constitution was inapposite and unnecessary in this case. Section 38 is about standing. Mr. Mudenda did not need to rely on section 38 to claim standing to bring the application, because the application is being brought by Mr. Tawodzera himself, who clearly has standing to seek the relief he seeks. Mr. Mudenda merely deposes to the founding affidavit on Mr. Tawodzera’s behalf. It can safely be assumed, and the respondents did not contend otherwise, that, as Mr. Tawodzera’s attorney, Mr. Mudenda had the necessary authority to institute the application.

35             Nor can it be accepted, without further explanation, that Mr. Tawodzera was unable to depose to the affidavit himself, merely because he was in Zimbabwe. Affidavits are regularly attested to outside South Africa. I can accept that there may have been obstacles to this when the urgent application was instituted, but these obstacles, if relevant, would have to have been explained fully.

36             Be that as it may, it was not necessary for Mr. Tawodzera to depose to the affidavit at all. Provided that he had the necessary knowledge, Mr. Mudenda was perfectly entitled to do so. The facts in this case almost all arise from the documents exchanged between Mr. Tawodzera, and his attorneys and the respondents and their representatives. There is no dispute about the authenticity of these documents. Nor is there any dispute that the exchange of documents followed the course Mr. Mudenda alleges in the affidavit.

37             Section 38 is not engaged when an attorney claims authority to depose to an affidavit on behalf of his client, and to institute proceedings that their client has authorised them to institute. It is engaged when a party approaches a court to allege a right in the Bill of Rights has been infringed or threatened, and does so acting in their own interest, on behalf of another party “who cannot act in their own name”, acting as part of a group or class of persons, acting in the public interest, or acting as an association in the interests of its members.

38             None of these situations applies here. Mr. Mudenda was carrying out his client’s mandate.

39             Nor was Mr. Mudenda, in truth, alleging that a right in the Bill of Rights had been infringed or threatened. In argument, Mr. Vobi, who appeared together with Mr. Modisane for Mr. Tawodzera, disavowed reliance on the right to just administrative action in section 33 of the Constitution, and on the Promotion of Administrative Justice Act 2 of 2000, which gives effect to section 33.

1.5cm; text-indent: -1.5cm; line-height: 150%"> 40             The case before me was advanced purely on the basis that the impugned decisions breached the principle of legality in section 1 (c) of the Constitution, 1996.

Is reliance on the principle of legality permitted where the decisions impugned are “administrative action” for the purposes of PAJA?

41             That raises a further preliminary issue. The decisions that Mr. Tawodzera challenges are the 15 March 2019 decision to invite representations on the Department’s view that Mr. Tawodzera’s permanent residence had lapsed, the final 1 November 2019 decision to declare his permanent residence permit to have “lapsed” and the 10 December 2019 decision to deport him to Zimbabwe. With the possible exception of the decision of 15 March 2019 (which may lack the necessary finality and external legal effect) these decisions, all taken in terms of the Act, are plainly “administrative action” within the meaning of section 1 of PAJA. They are decisions taken by organs of state exercising public powers in terms of the Act which adversely affected Mr. Tawodzera’s rights, and had a direct external legal effect.

42             Ms. Rantho, who appeared for the respondents, argued trenchantly that, if the impugned decisions are administrative action under PAJA, then Mr. Tawodzera was obliged to frame his case under PAJA. He was not entitled to rely on the principle of legality,

43             This is the view expressed by Cachalia JA in State Information Technology Agency Soc Ltd v Gijima Holdings 2017 (2) SA 63 (SCA), on which Ms. Rantho relied. Writing for the majority of the Court, Cachalia JA held that “the proper place for the principle of legality in our law is to act as a safety-net or a measure of last resort when the law allows no other avenues to challenge the unlawful exercise of public power. It cannot be the first port of call or an alternative path to review, when PAJA applies” (para 38). Cachalia JA concludes that “litigants and the courts are not entitled to bypass its provisions and rely directly on the constitutional principle of legality” (para 44).

44             If the effect of these passages is that a court can never entertain an application to review the lawfulness of the exercise of public power under section 1 (c) where PAJA would otherwise apply, then I am bound by the decision in Gijima, and I must dismiss the application for want of compliance with PAJA.

45             However, I do not think that the decision in Gijima was intended to lay down a strict rule that in all circumstances, no matter what the nature of the litigation, no matter the impact it has on the dignity and freedom of the people involved, and no matter how plainly irrational or perverse the conduct complained of is, a court must non-suit a person who fails to rely on PAJA when they could have done so.

46             The facts in Gijima involved the State Information Technology Agency’s (“the Agency’s”) attempt to review and set aside its own decision to award a contract to Gijima Holdings. The review application was instituted under section 1 (c) of the Constitution and not under PAJA. The Agency’s attempt to rely on section 1 (c) of the Constitution, rather than PAJA, was held to be little more than an attempt to circumvent the 180 day time limit on the institution of PAJA review proceedings. It was also held to be intended “to avoid having to deal with its payment dispute [with Gijima] arising from its breach of contract”. The courts, Cachalia JA held “cannot countenance such dishonourable conduct, particularly from an organ of state”. To do otherwise, Cachalia JA held, would amount to tolerating an organ of state disregarding legality “even as it purports to assert legality” (para 39).

47             A further reason for holding the Agency to PAJA review in that case was said to be the obvious prejudice to Gijima in permitting a dilatory challenge to the decision to award a contract to it in breach of the applicable public procurement requirements, in circumstances where the validity of the contract was not otherwise in issue.

48             It has not been suggested that, in this case, Mr. Tawodzera has any ulterior motive for relying on the principle of legality. There is no discernible prejudice to the respondents from him doing so. The respondents did not allege that they had suffered any prejudice as a result of Mr. Tawodzera’s failure to rely on PAJA. Nor was it suggested that the information provided on the papers is insufficient to adjudicate the dispute, and that a record under PAJA was called for.

49             In fact, the only person who could suffer from Mr. Tawodzera’s election is Mr. Tawodzera himself. This is because he has effectively waived the record of the decisions he challenges, and is constrained, in his application, to demonstrate that the decisions he impugns are irrational or in breach of the Act. There is no other conceivable basis on which he could succeed in reliance on section 1 (c) of the Constitution. Irrationality and illegality are exacting grounds of review. PAJA, on the other hand, allows a much wider variety of more nuanced review grounds, reliance on which could only enrich Mr. Tawodzera’s case.

50             Accordingly, this is not a matter in which a party has sought to rely on section 1 (c) of the Constitution dishonourably, for some ulterior motive, or to obtain some improper advantage. It seems clear that, at worst for Mr. Tawodzera, the failure to make out a case under PAJA was a mistake made in the heat of urgent litigation intended to reverse his ejection from a country where he had made a life and a career for almost twenty years. I do not think that the decision in Gijima can be read to exclude the possibility of reliance on section 1 (c) in these circumstances.

51             A further consideration is this: the 180-day period for challenging the decisions impugned in this case has long since passed. If I refuse the application on the grounds that Mr. Tawodzera ought to review the decisions under PAJA, then it will be necessary for him to apply to extend the 180-day period provided for in section 7 of PAJA. Although he may be successful in doing so, orders of that nature are not given for the asking. The effect of declining Mr. Tawodzera’s application on the technical basis that he did not proceed in terms of PAJA may be to deny him a hearing on the merits altogether.

52             In any event, I do not regard it as necessarily ideal that PAJA should always trump legality review where PAJA applies. A decision may be alleged to be so grossly illegal that a less complex route to review, which does not engage what Cachalia JA called PAJA’s “testing analytical enquiry”, ought to be available to an aggrieved litigant. Where unlawfulness is alleged to be particularly blatant or prejudicial, it seems to me superfluous to rehearse debates about whether or not it amounted to administrative action, or to call for a record, or to consider whether any of PAJA’s many review grounds apply, and if so, which ones. In cases that admit of any complexity, the nuanced and carefully structured provisions of PAJA will of course be the appropriate route. But it seems to me that, in cases of clear irrationality or illegality – which will hopefully be rare – section 1 (c) ought to provide a simple and straightforward route to the merits of a dispute.

53             Finally, I have had regard to the fact that the SCA’s decision in Gijima was successfully appealed to the Constitutional Court (See State Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC)). The Constitutional Court held that PAJA does not apply when an organ of state seeks to review its own decision. It followed that the Agency had no choice but to seek review under section 1 (c) of the Constitution. The Constitutional Court’s decision meant that it did not have to confront the issue of whether a litigant could choose to review a decision to which PAJA applies under section 1 (c) of the Constitution.

54             However, the Court unanimously disagreed with Cachalia JA’s view that, if PAJA did not normally apply to the exclusion of section 1 (c) of the Constitution, then PAJA would quickly become redundant (para 37). That, it seems to me, indicates that the Constitutional Court was at least open to the possibility that a litigant could, in an appropriate case, choose legality review over PAJA review where both are available.

55             Accordingly, I hold that the decision in Gijima does not lay down an inflexible rule that the principle of legality may never be relied upon where PAJA applies. Much will depend on the character of the litigation, the consequences of non-suiting the party relying on the principle of legality, the prejudice to any party that would result from not proceeding under PAJA, and the interests of justice. The effect of Gijima is, in my view, that a party should not normally be allowed to rely on section 1 (c) where PAJA would otherwise apply. It did not purport to exclude the possibility that there may be circumstances in which the interests of justice might require a more flexible approach.  

56             Ms. Rantho also urged me to refuse the application on the basis that the constitutional rule of subsidiarity required Mr. Tawodzera to rely on PAJA and not section 1 (c) of the Constitution. However, I do not think that the rule applies in this case. Subsidiarity is the rule, first stated in New Clicks, that, where a right in the Bill of Rights requires that Parliament passes legislation to give effect to it, a person who makes a claim of a breach of that right must rely on the legislation and not directly on the right itself. In other words, where legislation covers the field of possible claims to be brought under a right, and the Constitution clearly intends that field of rights claims be regulated by legislation, a litigant cannot avoid that  legislation by “going behind” it, unless the claim is that the legislation itself fails to give effect to the right (See Minister of Health v New Clicks 2006 (2) SA 311 (CC) paras 96 and 97).

57             I do not think that the principle of subsidiarity has yet been extended beyond provisions of the Bill of Rights that specifically require legislation to be passed to give effect them, and to cover the field of claims that could be brought under the right concerned. I do not think that such an extension would be appropriate, as it would have the effect of preventing litigants from relying directly on the Constitution where the Constitution itself had expressed no such purpose or intent. That would unduly fetter claims based on the Constitution, which is a result that the Constitutional Court has in the past been keen to avoid (see Khumalo v MEC for Education, KwaZulu-Natal 2014 (5) SA 579 (CC) para 45).

58             In this case, therefore, I am convinced that the interests of justice require that Mr. Tawodzera be allowed to make his case out on section 1 (c) of the Constitution, and to stand or fall by that case. 

Review under section 1 (c) of the Constitution

59             The question in this case is accordingly whether the impugned decisions were taken in breach of the principle of legality.

60             It is well established that legality review is narrower and “less exacting” than review under PAJA (Minister of Defence and Military Veterans v Motau 2014 (5) SA 69 (CC) para 27). At its core, however, legality review requires that the exercise of a power must be authorised by law (Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC) para 58). It must also be “rationally related to the purpose for which the power was conferred”. The process leading to the decision must also be rational. (Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) paras 27 and 34).

61             It seems clear to me that the decisions impugned in this case were neither rational nor authorised by law in these senses.

The scope of section 26 of the Immigration Act at the relevant time

62             In their answering affidavit, the respondents advanced the case that Mr. Tawodzera’s permanent residence permit was invalid because it was obtained in breach of section 26 of the Act. It was argued that acquisition of permanent residence by marriage is only possible if the applicant has been the spouse of a citizen or permanent resident for five years. Mr. Tawodzera, so the argument went, was married to Ms. Sombundla for less than four years before her death. He could accordingly not have lawfully acquired permanent residence under section 26.

63             This point would have had some merit if section 26 said in 2004 what it says now. But as I have already pointed out, it does not. Mr. Tawodzera’s permanent residence permit was granted under a more generous regime than now applies. When Mr. Tawodzera was granted permanent residence, an applicant qualified for permanent residence immediately upon marriage to a South African, provided that their permanent residence status would lapse if the marriage was dissolved by anything other than death within three years.

64             It follows that the respondents’ reliance on section 26 of the Act as it now reads is misplaced.

 

The decision of 5 March 2019

65             I am satisfied that the decision of 5 March 2019 was at the very least procedurally irrational. The decision was, in essence, to afford Mr. Tawodzera the right to make representations in response to the Director-General’s prima facie view that his permanent residence permit had “lapsed” because it was “issued on a misrepresentation”. This was a position to which it was impossible to respond. When read in light of section 26 of the Act, in terms of which Mr. Tawodzera’s permit was issued, it made no logical sense. Section 26 makes no provision of the “lapsing” or withdrawal of permanent residence when a misrepresentation is discovered. The nature of the misrepresentation was not, in any event, set out. Nor was the basis for forming the view that Mr. Tawodzera’s marriage was fraudulent.

66             In the circumstances, the contents of the 1 March 2019 letter had no rational connection to the procedural purpose it was intended to serve. Mr. Tawodzera could was left with no option but to issue a bald denial of its contents, and await further particularity of the Director-General’s claims. This is what Mr. Tawodzera did, but the required particularity never really emerged.

The decision of 1 November 2019

67             There is no rational basis for the decision of 1 November 2019 apparent on the papers. There is no reason for rejecting Mr. Tawodzera’s assertion that the marriage was genuine and valid, or for reversing the decision made on behalf of the Director-General in 2002, that the marriage constituted a good faith spousal relationship for the purposes of section 26 of the Act. As Mr. Tawodzera’s attorney pointed out in his letter of 19 December 2019, both Ms. Sombudla and Mr. Tawodzera were interviewed at the time of their marriage, and the Department of Home Affairs was satisfied at that time that their marriage was genuine and in good faith. If that decision had been reversed, the least the respondents had to do was say why.

68             They did not. In addition, there was no basis in law for the conclusion that Mr. Tawodzera’s permanent residence permit had “lapsed as it was based on a misrepresentation” as was asserted in the 1 November 2019 letter. The idea that a permit “lapses” because it was dishonestly obtained under section 26 of the Act is itself unintelligible. At the relevant time, section 26 provided that a permit could lapse if a marriage dissolved within three years, but that is not the same as the permit being invalidly issued in the first place.

69             The highwater mark of the respondents’ case seems to be that Mr. Tawodzera’s permanent residence permit was invalid because his marriage to Ms. Sombundla was a sham. But, again, the respondents have produced nothing to substantiate this – not to Mr. Tawodzera and not before me. The respondents’ answering affidavit is noteworthy for its failure to allege any substantive basis for having decided that Mr. Tawodzera’s permanent residence has “lapsed”.

70             There is, it is true, the statement of the Prosecutor at Mr. Tawodzera’s 11 December 2019 appearance in the Pretoria Magistrates’ Court, that no-one from Ms. Sombudla’s family knew of his marriage. But there is no evidence anywhere on the papers before me that this is true, let alone a statement or affidavit from anyone in Ms. Sombudla’s family substantiating it. I emphasise: that proposition – which is perhaps the very beginning of a case that might notionally have been made against Mr. Tawodzera – is not relied upon in the respondents’ answering affidavit either.

71             In these circumstances, I am unable to accept that the decision to declare Mr. Tawodzera’s permanent residence permit to have “lapsed as it was based on a misrepresentation” was either authorised by law or rationally connected to a legitimate government purpose. It is invalid, and must be set aside.

The decision to deport Mr. Tawodzera

72             It follows that all the steps based on that decision must likewise be invalid. Ms. Rantho suggested to me in argument that once the decision to deport Mr. Tawodzera was made on 10 December 2019, that decision had a separate and independent existence from the decision of 1 November 2019. I do not agree. The decision to deport Mr. Tawodzera was based on the irrational conclusion that Mr. Tawodzera’s permanent residence permit had lapsed. It follows that the decision to deport Mr. Tawodzera was, likewise, irrational and invalid.

73             It follows that I need not decide whether the various appeals lodged on Mr. Tawodzera’s behalf had the effect of suspending his deportation until the Minister had confirmed the decision to do so in terms of section 8 (2) (b) of the Act.

The form and effect of the order to be granted

74             Mr. Tawodzera is entitled to an order invalidating the decision made by or on behalf of the Director-General on 5 March 2019 to invite him to make representations in connection with view that supplied no particularity upon which those representations could rationally have been made or evaluated, the 1 November 2019 decision to declare his permanent residence permit to have “lapsed” and the decision of 10 December 2019 to deport him. 

75             The effect of these orders will be that Mr. Tawodzera’s permanent residence never “lapsed” or otherwise became invalid, and that he was never lawfully removed from South Africa. It follows that he is entitled to an order directing the respondents to permit him to re-enter South Africa as a permanent resident. Mr. Vobi asked that I interdict and restrain the respondents from preventing his re-entry, but it seems to me that the respondents have not acted to create any reasonable apprehension on Mr. Tawodzera’s part that they will disobey a court order requiring them to permit him to re-enter the country. An interdict would accordingly be inappropriate.

76             The effect of these orders is also to preserve the right of the Director-General, if he believes it necessary to do so, to set out precisely why he believes Mr. Tawodzera’s permanent residence permit was unlawfully obtained. If it turns out that these grounds are substantial, then they will have to be tested using the ordinary procedures and remedies set out under the Act, read, where appropriate, with PAJA. If it then turns out that Mr. Tawodzera’s permanent residence permit was fraudulently obtained, there is no bar, in principle, to the Director-General taking the appropriate action under the Act.

77             I appreciate that the respondents and their officials face a difficult task in enforcing the Act, and in ensuring that permanent residence is only granted to those who are truly entitled to it. But this task must be performed rationally and lawfully. Decisions that might lead to invalidating someone’s right to be in South Africa must be authorised by, and rationally connected to, the purposes of the Act, especially where, as in this case, the person who stands to be aggrieved by them has made a home and a life here, has a job, and is presumably embedded in affective networks that are meaningful and important to him.

78             There is no reason why, in a case like this, Mr. Tawodzera ought not to be awarded his costs.

79             I make the following order –

1.    The decision made by or on behalf of the second respondent dated 5 March 2019, to invite the applicant to make representations setting out why his marriage was not fraudulent and why his permanent residence permit had not “lapsed” because “it was issued on a misrepresentation” is declared invalid and is set aside.

2.    The decision made by or on behalf of the second respondent dated 1 November 2019, that the applicant’s permanent residence permit had “lapsed as it was based on a misrepresentation” is declared invalid and is set aside.

3.    The decision made by or on behalf of the second respondent dated 10 December 2019, to declare the applicant an illegal foreigner, and to deport him, is declared invalid, and is set aside.

4.    The respondents are directed to re-admit the applicant to the Republic of South Africa as a permanent resident.

5.    The respondents are directed to pay the applicant’s costs, including the costs of two counsel.

SDJ WILSON

Acting Judge of the High Court

 

 

This judgment was handed down electronically by circulation to the parties or their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 1 December 2020.

HEARD ON:              2 November 2020

DECIDED ON:          1 December 2020

 

For the Applicant:                                           S I Vobi

                                                                        (with him T Modisane)

Instructed by Mudenda Incorporated

 

For the Respondent:                                       M Rantho

                                                                        Instructed by the State Attorney

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