LITTLEWOOD v MINISTER OF HOME AFFAIRS
Case no: 160 / 2004
Date of judgment:
22-03-2005
A summary:
The appellants had obtained permanent residence permits
which had been determined to be fraudulent. They applied to the Minister in
terms of section 28(2) of the Aliens Control Act (now replaced by section
31(2)(b) of the Immigration Act) to be allowed to continue staying in the
country temporarily so as to allow them to apply properly for permanent
residence. They asked the Minister to exempt them from needing the temporary
residence permits which ordinarily they would need to continue residing in the
Republic during that period.
Section 28(2) allowed the Minister to exempt persons
either for a limited or permanent period from needing to obtain temporary or
permanent residence in the ordinary way. The applicants had to show however that
there were âspecial circumstancesâ in their case which justified the Ministerâs
intervention and âoverrideâ of the requirements of section 23 of the Act.
Rather than consider the merits of the Littlewood
representations, the Minister adopted the attitude, as the Department does so
often in these exemption applications, that the existence of the fraudulent
permits ended the inquiry. The Supreme Court of Appeal held that this approach
was unlawful, that the merits of the application had to be considered and
referred the matter back to the Minister for reconsideration. The Court did not
have to deal with what were or were not, special circumstances. The Supreme
Court of Appeal also expressed its concern at the evident ease with which the
Ministerâs representative accused the appellants of fraud. It urged public
officials to exercise restraint in such matters.
| THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA |
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| Reportable |
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| CASE NO: 160/04 |
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| In the matter between : |
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| NICHOLAS CARL STEWART LITTLEWOOD |
First Appellant |
| HEATHER LITTLEWOOD |
Second Appellant |
| EMMA LOUISE LITTLEWOOD |
Third Appellant |
| NICHOLA KATE LITTLEWOOD |
Fourth Appellant | |
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| and |
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| MINISTER OF HOME AFFAIRS |
First Respondent |
| THE DIRECTOR-GENERAL OF THE DEPARTMENT OF HOME
AFFAIRS |
Second Respondent | |
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| ________________________________________________________________________ |
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| Before: |
HOWIE P, NAVSA, MTHIYANE, NUGENT & PONNAN JJA |
| Heard: |
11 MARCH 2005 |
| Delivered: |
22 MARCH 2005 |
| Summary: |
Review â application to Minister of Home Affairs for exemption from s 23 of
the Aliens Control Act 96 of 1991 â failure to consider whether âspecial
circumstancesâ existed â decision set aside. | |
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| ________________________________________________________________________ |
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| JUDGMENT |
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| ________________________________________________________________________ |
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| NUGENT JA |
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| NUGENT JA: |
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[1] The Littlewood family â Nicholas Littlewood (I will refer to him as
Littlewood), his wife Heather, and their two minor daughters â are British
citizens who are living in this country. Littlewood alleges that when he took
steps to renew his passport (which seems to have been towards the end of the
year 2000) he discovered, for the first time, that the permanent residence
permits that had been endorsed in the passports of him and his wife â ostensibly
by the Department of Home Affairs â were not authentic. Without valid permits
their presence in South Africa was prohibited by s 23 of the Aliens Control Act
96 of 1991 and they were liable to be deported. At the time the discovery was
made the Littlewoods had been in South Africa for more than two years. They had
severed their ties in Britain, they had established a home, Littlewood had
established a small business, and the children were settled at
school.
[2] The family was caught in a dilemma. At that time the
authorities would generally not entertain applications for permanent residence
unless they were made while the applicant was in his or her country of origin.
Thus the Littlewoods were not able to regularise their position unless they
first uprooted their settled existence and returned to Britain .
[3]
However, s 28(2) of the Act authorised the Minister of Home Affairs to exempt
any person from the provisions of s 23 â whether for a specified or an
unspecified period, and on such conditions as he or she might impose â if the
Minister was satisfied that there were âspecial circumstancesâ which justif[ied]
his or her decisionâ.
[4] In an attempt to resolve their dilemma the
Littlewoods applied for such an exemption in about the middle of 2001 . The
terms in which the exemption was sought do not appear expressly from the
application but it was accepted by all the parties before us that it was limited
to a temporary exemption from the provisions of s 23 while an application was
made for the right to permanent residence.
[5] Acting on the advice of
officials in his department the Minister refused the application. The
Littlewoods were advised of the decision, and given the reasons for it, in a
letter from the Minister dated 26 October 2001. Aggrieved at the Ministerâs
refusal the Littlewoods applied to the High Court at Pretoria for his decision
to be set aside. That application, which came before Maluleke J, was also
unsuccessful, and they now appeal with the leave of this court.
[6] In
support of their application to the Minister the Littlewoods advanced the
following explanation for their presence in South Africa.
[7] The
Littlewoods have relatives in this country whom they were accustomed to visit
from time to time. The last visit that they made from Britain extended from 18
October 1997 (when they arrived) until the evening of 9 January 1998 (when they
departed).
[8] At that time Littlewood had been working for about fifteen
years in a specialised field of concrete paving. Before that he had qualified
and worked as an electrician on the English coalfields. His brother-in-law owned
a construction business in Pretoria and Littlewood was invited to join the
business. By the time the visit came to an end he had decided to accept. Before
his departure Littlewood completed an application to the South African
authorities for a temporary residence permit for twelve months and for a work
permit, and once he was in London he delivered it to the High
Commission.
[9] Early in May 1998 Littlewood was advised by the High
Commission that the application had been turned down. At about the same time,
according to Littlewood, he was approached to join a French paving firm (Ellis
Beton Décoratife) that was operating in South Africa. He told the firm that he
had been refused a work permit but he was told that the firm would arrange for
the necessary permits to be issued to him and his family after their arrival in
this country.
[10] On the strength of that assurance, said Littlewood, he
entered South Africa on 26 July 1998 on a business visa that was valid for three
months, to take up the position with the French firm. He was followed a month or
so later by his family who entered the country on visitorsâ visas valid for
three months.
[11] The Littlewoods allege that soon after their arrival
their passports were handed to Mr Robin le Fevre, the local representative of
the French firm, who was to arrange for the issue of permanent residence
permits. The passports were later returned, endorsed with permanent residence
permits that purported to have been issued by the Department of Home
Affairs.
[12] In about September 1999 Ellis Beton Décoratife terminated
its South African operations, Le Ferve left the country (his present whereabouts
are unknown) and Littlewood commenced business on his own account. It was
thereafter, when arranging to renew his passport, that Littlewood discovered
that their permits were not authentic.
[13] The Littlewoodsâ application
to the Minister for a temporary exemption from the provisions of s 23 was
accompanied by a supporting memorandum that incorporated, amongst other things,
the above account of how the family came to be in South Africa, but the
memorandum contained an error. It was said in the memorandum that Littlewood
arrived to take up the position with the French firm in about June 1997, when in
truth he arrived on 26 July 1998. (His arrival on that date is confirmed by the
records that are kept by the Department of Home Affairs.) The significance of
that error appears later in this judgment.
[14] The reasons for the
Ministerâs decision are recorded in the letter that I have referred to, which
was drafted by departmental officials, and accepted by him. (That is not unusual
government practice.) It was noted in the letter that Littlewood had not
mentioned in his supporting memorandum that he had applied for, and been
refused, a work permit on an earlier occasion (the occasion referred to in
paragraph 9), and that Littlewood had worked for Ellis Beton Décorotife and
commenced his own business without a valid permit, and it was pointed out that
possession of a fraudulent permit was a serious offence and that it was the
responsibility of a visitor to this country to adhere to the law. The letter
then continued as follows:
âThe Department of Home Affairs also cannot be held responsible for
actions between private individuals, which has now resulted in the predicament
in which your client finds himself.â
The Minister went on to
say that he
ââ¦unfortunately must insist that Mr Littlewood and his family make
arrangements to leave South Africa within twenty-eight (28) days from receipt of
this letter and lodge the prescribed work permit application at the South
African High Commission in London. The said office will be requested to treat
the application with discernment and once received, it will be expedited, the
outcome of which must please not be anticipated.â
[15] The
court a quo was of the view that the Littlewoodsâ exemption application was
âdealt with in a manner that was lawful, reasonable and procedurally fairâ and
that the Minister had refused the application âon a consideration of all the
information furnished by [Littlewood] and the information in the records of the
department.â In my view the reasons advanced by the Minister in his letter show
the contrary.
[16] There are two features of the reasons that were
proffered by the Minister that are material for present purposes. First, there
is no suggestion in his letter that the Littlewoodsâ explanation for their
presence in South Africa was false and that their application was turned down on
those grounds. (A false explanation might, by itself, have justified a refusal,
but the veracity of the explanation is not material to this appeal.) Secondly,
it is apparent from the passage from the letter that I have quoted that the
explanation was not weighed at all before the application was turned down. The
application was turned down for no reason but that the Department of Home
Affairs saw the possession of a fraudulent permit as a serious offence that had
caused a predicament for which it was not responsible. But that begs the
question whether the circumstances that had arisen â albeit that it was not
attributable to fault on the part of the department â constituted âspecial
circumstancesâ justifying the granting of an exemption. It is apparent from the
reasons advanced in the letter that the Minister â on the advice of his
officials â failed to apply his mind to that question at all. (The departmental
memorandum that accompanied the recommendation to the Minister, and the
affidavits that have been filed in these proceedings, take the matter no
further.)
[17] The Minister was not called upon to decide whether his
department was at fault but rather whether âspecial considerationsâ existed
justifying an exemption. The effect of his failure to apply his mind to that
question was that he failed altogether to exercise the discretion conferred upon
him by the Act and his decision must be set aside.
[18] It is well
established that only exceptionally will a court substitute its own decision for
that of an official to whom the decision has been entrusted. It cannot be said
in the present case that the proper decision is a foregone conclusion, nor that
the Minister has disabled himself from properly making it, nor are there any
other grounds for substituting our decision for his. The proper course is to
remit the matter for re-consideration by the Minister.
[19] There is one
further matter that is relevant to the costs. In the answering affidavits that
were filed in this matter an official in the Department of Home Affairs â Mr
Vorster â launched a stinging attack upon the honesty of the Littlewoods,
alleging that they were party to fraudulently securing the invalid permits. That
prompted a robust response from the Littlewoods for which they were rebuked by
the court a quo.
[20] Vorsterâs attack was founded solely on the
statement in the supporting memorandum that Littlewood entered South Africa to
take up a position with Ellis Beton Décoratife in about June 1997. Vorster
reasoned that if Littlewood entered the country in June 1997, and soon
thereafter the inauthentic passport endorsements were made, then the fact that
he then lodged an application for temporary residence with the High Commission
(in early 1998) showed that he must have been aware that the endorsements were
invalid.
[21] That reasoning is impeccable but the premise is unsound. In
truth Littlewood did not arrive in June 1997 but in July 1998 and he drew
attention to the error in a supplementary affidavit that was filed before
Vorster deposed to his affidavit. Moreover, when Vorster deposed to his
affidavit, a printout from the departmentâs own records, confirming the correct
date, was already part of the record. Why Vorster, in those circumstances,
overlooked the true facts is left unexplained.
[22] No doubt a litigant â
even one who has been provoked â ought always to conduct litigation with
decorum. But so, too, ought a public official exhibit courtesy and restraint in
his official dealings â even with a person whom he disbelieves â and refrain
from alleging fraud without considerable reflection. The appellants have asked
for a special costs order on account of Vorsterâs ill-considered attack but I do
not think we should grant such an order. The appellants have been recompensed by
replying to Vorster in kind, which was itself inappropriate, and there matters
should be left to lie.
[23] The appeal is upheld with costs. The order of
the court a quo is set aside and the following order is substituted:
âThe Ministerâs decision is set aside. The application for an
exemption, supplemented by such information as may be required for a proper
consideration of the application, is remitted to the Minister for
re-consideration. The costs of the application are to be paid by the
respondents.â |
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