Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to September 2025/2010/Volume 4: 327 ­ 645
(August)/KOYABE AND OTHERS v MINISTER FOR HOME AFFAIRS AND OTHERS (LAWYERS FOR HUMAN RIGHTS AS AMICUS CURIAE) 2010 (4) SA 327 (CC)

URL:
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KOYABE AND OTHERS v MINISTER FOR HOME AFFAIRS AND OTHERS (LAWYERS FOR HUMAN RIGHTS AS AMICUS CURIAE) 2010 (4) SA
327 (CC)
2010 (4) SA p327

Citation 2010 (4) SA 327 (CC)

Case No CCT 53/2008

Court Constitutional Court

Judge Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Nkabinde J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J
and Yacoob J

Heard March 3, 2009

Judgment August 25,2009

Counsel V Soni SC (with S Yacoob) for the applicants

G Bofilatios for the respondents.

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Administrative law ­ Administrative action ­ Review ­ Domestic remedies ­ Duty to exhaust internal remedies before instituting legal
proceedings ­ C Requirement not absolute ­ Must not be used by administrators to frustrate efforts of aggrieved person or shield administrative
process from judicial scrutiny ­ Court empowered to condone non­exhaustion of internal remedies in exceptional circumstances ­ What
constitutes exceptional circumstances depending on facts and circumstances of case and nature of administrative action at issue ­ Court to
consider availability, effectiveness D and adequacy of internal remedies ­ Promotion of Administrative Justice Act 3 of 2000, s 7(2)(c).
Administrative law ­ Administrative action ­ Review ­ Domestic remedies ­ Duty to exhaust internal remedies before instituting legal
proceedings ­ Mere lapsing of time period for exercising internal remedy not on its own E satisfying duty to exhaust such remedies ­ Also not
constituting exceptional circumstance ­ To allow such would undermine rationale and purpose of duty to exhaust internal remedies ­ Aggrieved
party to take reasonable steps to exhaust internal remedies with view to obtaining administrative redress ­ Promotion of Administrative Justice
Act 3 of 2000, s 7(2)(c). F
Immigration ­ Prohibited person ­ Declaration as ­ Reasons for decision ­ Prohibited person requesting reasons for purpose of review of
decision ­ Letter informing prohibited person of decision, stating that investigation had revealed that he had previously fraudulently obtained
South African identity documents and therefore did not qualify for permanent residence, and that he was a prohibited person who did not qualify
for visas, G

2010 (4) SA p328

A admission to South Africa and temporary or permanent residence permits; that he was to be deported and was entitled to request Minister to
review decision to deport him ­ Contents of letter clear and constituting adequate reasons for decision ­ Immigration Act 13 of 2000, s 29(1)(f).
Immigration ­ Prohibited person ­ Declaration as ­ Remedies ­ Priority ­ Aggrieved person to seek ministerial review before resorting to
application for B judicial review ­ Immigration Act 13 of 2000, s 29(1)(f).
Headnote : Kopnota
The applicants, all Kenyans, had applied for South African identity documents. They were later informed by letters from Ms F of the third
respondent, the Department of Home Affairs, dated 9 January 2007, that an investigation C had revealed that they had previously obtained
South African identity documents by fraudulent means and therefore did not qualify for permanent residence after 1 July 2005; that, in terms of
s 29(1)(f) of the Immigration Act 13 of 2002 (the Act), the first and second applicants were prohibited persons and did not qualify for visas,
admission to South Africa and temporary or permanent residence permits; that they were to be D deported and they were entitled, under s 8 of
the Act, to request the Minister to review the decision to deport them. On the advice of their attorney, the applicants, through their attorney,
requested the Minister, the first respondent, to furnish them with reasons for the decision to withdraw or terminate their residence permits, for
the purpose of a review application E in terms of s 5 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The third respondent
wrote to the applicants' attorney on 7 February 2007, stating that the reasons for the decision had been adequately set out in the letters of 9
January 2007. The applicants, however, failed to submit a request to the Minister for a review of the decision within three days, as provided in s
8(1) of the Act. The applicants then applied to F a High Court for a review and the setting­aside of the decision to withdraw their permanent
residence permits and status. The High Court held that the applicants, in failing to request the Minister to review the decision, had not
exhausted their internal remedies as required by s 7(2)(a) of PAJA, and concluded that there were no exceptional circumstances that would
allow it, in terms of s 7(2)(c) of PAJA, to exempt the applicants from the obligation G to exhaust internal remedies. The application was
dismissed. Applications for leave to appeal were refused by both the High Court and the Supreme Court of Appeal. In an application to the
Constitutional Court for leave to appeal, the applicants contended that they had intended to exhaust their internal remedy as required by s
7(2), but the respondents' refusal to provide reasons for withdrawing the residence permits precluded the H applicants from meaningfully
challenging that decision through internal review. They contended further that, having been informed that the time period to apply for a
ministerial review had expired, the internal remedy was no longer available to them to proceed as they had intended. Accordingly, it was
contended, to permit the respondents to rely on s 7(2) to non­suit them would be contrary to the spirit of the Constitution.
I Held, that the duty to exhaust internal remedies was a valuable and necessary requirement in our law. However, that requirement should not
be rigidly imposed; nor should it be used by administrators to frustrate the efforts of an aggrieved person or to shield the administrative process
from judicial scrutiny. PAJA recognised this need for flexibility, acknowledging in s 7(2)(c) that exceptional circumstances may require that a
court condone J non­exhaustion of the internal process and proceed with judicial review

2010 (4) SA p329

nonetheless. Under s 7(2) of PAJA, the requirement that an individual A exhaust internal remedies was therefore not absolute. (Paragraph [38]
at 343A ­ C.)
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Held, further, that what constituted exceptional circumstances depended on the facts and circumstances of the case and the nature of the
administrative action at issue. Thus, where an internal remedy would not be effective and/ B or where its pursuit would be futile, a court might
 2010 (4) SA p329
nonetheless. Under s 7(2) of PAJA, the requirement that an individual A exhaust internal remedies was therefore not absolute. (Paragraph [38]
at 343A ­ C.)
Held, further, that what constituted exceptional circumstances depended on the facts and circumstances of the case and the nature of the
administrative action at issue. Thus, where an internal remedy would not be effective and/ B or where its pursuit would be futile, a court might
permit a litigant to approach the court directly. So too where an internal appellate tribunal had developed a rigid policy which rendered
exhaustion futile. (Paragraph [39] at 343C ­ D.)
Held, further, that judicial enforcement of the duty to exhaust internal remedies had, in giving content to the 'exceptional circumstances'
exemption, to consider the availability, effectiveness and adequacy of the existing internal C remedies. (Paragraph [45] at 345B ­ C.)
Held, further, that, although the duty to exhaust deferred access to courts, it had to be emphasised that the mere lapsing of the time period for
exercising an internal remedy would not on its own satisfy the duty to exhaust, nor would it constitute exceptional circumstances. Someone
seeking to avoid D administrative redress would, if it were otherwise, simply wait out the specified time period and proceed to initiate judicial
review. That interpretation would undermine the rationale and purpose of the duty. Thus, an aggrieved party must take reasonable steps to
exhaust available internal remedies with a view to obtaining administrative redress. (Paragraph [47] at 345E ­ G.)
Held, further, that the applicants had been notified of the decision declaring them E prohibited persons in terms of s 29(1)(f) of the Act, and the
appropriate response on their part at that stage was to request a ministerial review in terms of s 8(1) of the Act: s 8(1) required that the
applicants request an administrative review before resorting to the courts. (Paragraphs [56] and [57] at 348B ­ D.)
Held, further, as to the applicants' contention that they had, in the letters of F 9 January 2007, been presented with a series of findings and
conclusions of law, as opposed to reasons, which they were entitled to under s 5 of PAJA, that, although the reasons had to be sufficient, they
did not have to be specified in minute detail, nor was it necessary to show how every relevant fact weighed in the ultimate finding. What
constituted adequate reasons would therefore vary, depending on the circumstances of the particular G case. Ordinarily, reasons would be
adequate if a complainant could make out a reasonably substantial case for a ministerial review or an appeal. (Paragraph [63] at 350B ­ C.)
Held, further, that the contents of the letters of 9 January 2007 were clear: the applicants were declared prohibited persons because they
obtained their identity documents fraudulently. On that basis they had been declared H illegal immigrants. Simply put, their presence in the
country was unlawful and they had to leave or be deported. Considered in the context of the earlier meeting where Ms F discussed the
allegations of fraud against them, the basis for the withdrawal of their residence permits could not have been clearer. (Paragraph [66] at 351E ­
G.)
Held, accordingly, that the applicants' judicial review application had been I premature and that they were first required to exhaust the
available ministerial review. (Paragraph [69] at 352B ­ C.)
Held, further, that the applicants had shown no exceptional circumstances as a basis for a claim to be exempted from exhausting the available
internal remedy. Based on the information at their disposal, a meaningful review was thus well within their reach. There was no justifiable basis
for the J

2010 (4) SA p330

Aapplicants' failure to institute ministerial review proceedings, as was required by s 8(1) of the Act read with s 7(2) of PAJA. (Paragraphs [73]
and [74] at 354C and 354E.)
Held, further, that, in the light of the provisions of s 7(2)(b) of PAJA, the applicants should be directed to proceed within seven days of this
judgment with an application for a review of the decision withdrawing their permanent B residence status, before they embarked on a judicial
review, if necessary. (Paragraph [83] at 357F ­ G.) Application for leave to appeal granted, but the appeal dismissed.
Cases Considered
Annotations
C Reported cases
Southern Africa
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255): referred to
Affordable Medicines Trust and Others v Minister of Health and Others D 2006 (3) SA 247 (CC) (2005 (6) BCLR 529): dictum in para [138]
applied
African Christian Democratic Party v Electoral Commission and Others 2006 (3) SA 305 (CC) (2006 (5) BCLR 579): dictum in paras [17] ­ [18]
applied
August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) (1999 (4) BCLR 363): considered
E Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): dicta in paras [25],
[45] and [48] applied
Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014): dictum in paras [16] ­ [17] applied
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) F 2001 (4) SA 938 (CC) (2002 (1)
SACR 79; 2001 (10) BCLR 995): considered
Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA): dictum in paras [13] ­ [14] applied
Commissioner, South African Police Service, and Others v Maimela and Another 2003 (5) SA 480 (T): applied
G Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1): considered
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169): considered
In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002
(10) BCLR 1023): dictum in para [5] applied
H Kiva v Minister of Correctional Services (2007) 28 ILJ 597 (E) ([2007] 1 BLLR 86): not approved
Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC)
(2001 (7) BCLR 652): dictum in para [101] applied
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others I 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998
(12) BCLR 1517): considered
Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA): dicta in paras [15] and [32] applied
Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274): dictum in para [30]
J applied

2010 (4) SA p331

President of the Republic of South Africa and Others v South African Rugby Football Union and Others A 2000 (1) SA 1 (CC) (1999 (10) BCLR
1059): dictum in para [219] applied
Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231):
dictum in para [19] applied
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Reed and Others v Master of the High Court of SA and Others B [2005] 2 All SA 429 (E): dictum in para [20] applied
 President of the Republic of South Africa and Others v South African Rugby Football Union and Others A 2000 (1) SA 1 (CC) (1999 (10) BCLR
1059): dictum in para [219] applied
Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231):
dictum in para [19] applied
Reed and Others v Master of the High Court of SA and Others B [2005] 2 All SA 429 (E): dictum in para [20] applied
S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36): dictum in para [12] applied
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) (2007 (2) SACR 539; 2007 (12) BCLR 1312): considered
S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): C considered
S v Shaik and Others 2008 (2) SA 208 (CC) (2008 (1) SACR 1; 2007 (12) BCLR 1360): dictum in para [15] applied
Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (2007 (4)
BCLR 339): referred to D
United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others
Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) 2003 (1) SA 495 (CC) (2002 (11) BCLR 1179):
considered
Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR 1167: referred to E

Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) (2005 (4) BCLR 347): dictum in paras [113] ­ [114]
applied.
International Courts
Interhandel Case (Switzerland v United States) 1959 ICJ Rep 6: dictum at 27 applied F

Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000): dicta in paras [31], [32] and [33] applied
Parque Sao Lucas v Brazil (case 10.301 IACHR Report No 40/03 (2003): dictum in para [31] applied.
Foreign
United States G

McCarthy v Madigan 503 US 140 (1992): applied.

Unreported cases
Koyabe and Others v Minister of Home Affairs and Others (TPD case No 4754/2007, 18 January 2008): confirmed on appeal. H

Statutes Considered
Statutes
The Immigration Act 13 of 2002, ss 8 and 29(1)(f): see Juta's Statutes of South Africa 2008/9 vol 7 at 4­38 and 4­44
The Promotion of Administrative Justice Act 3 of 2000, ss 5 and 7(2): see Juta's Statutes of South Africa 2008/9 vol 5 at 1­265 and 1­266. I

Case Information
Application for leave to appeal and appeal from a decision of the North Gauteng High Court, Pretoria (Fabricius AJ). The facts appear from the
judgment of Mokgoro J.
V Soni SC (with S Yacoob) for the applicants.
G Bofilatos for the respondents. J

2010 (4) SA p332

MOKGORO J
A S Budlender (with K Hofmeyr) for the amicus curiae.
Cur adv vult.
Postea (August 25).
Judgment
B Mokgoro J:
[1] This case arises from the withdrawal of residence permits that had been granted to non­South Africans. It raises questions about the right
to just administrative action, more particularly about the circumstances C in which internal remedies must be exhausted before applications for
judicial review can be made. In this matter, the applicants seek leave to appeal against the judgment of the North Gauteng High Court, Pretoria
(the High Court),1 dismissing their request for the review and setting aside of the decision by the Director­General of Home Affairs (the D
second respondent) to withdraw or terminate their residence permits. The applicants also seek an order that the costs of their application in
this court be costs in the appeal.
The parties
E [2] The first applicant is Mr Wycliffe Simiyu Koyabe, a Kenyan businessman. The second applicant is Ms Mary Kadenyi Koyabe, the first
applicant's wife, who is also Kenyan. The first and second applicants currently reside in South Africa with their adult son, Mr Anthony Simiyu
Koyabe, the third applicant in this matter, and their three other minor children.
F [3] The Minister for Home Affairs (the Minister) is the first respondent. The second respondent is the Director­General of Home Affairs
(Director­General), and the third respondent the Department of Home Affairs (the Department).
G [4] Lawyers for Human Rights (the amicus curiae), a non­governmental organisation whose objective is the promotion and enforcement of
human rights in South Africa, applied and were admitted as amicus curiae.
Background
H [5] The facts of this case are highly contested by the parties. The first applicant first came to South Africa in 1994 and obtained a work
permit during his stay. In 1995 he married Ms Lindiwe Ngobese, a South African citizen. They divorced in 1996. After the divorce he applied to
convert his work permit to an 'own­business work permit'. This I application was refused after Ms Ngobese revealed to the Department that her
marriage to the first applicant had been one of convenience.

2010 (4) SA p333

MOKGORO J
[6] While the first applicant's appeal against that decision was pending, A Mrs Willis, an 'immigration agent', informed him that he would qualify
for permanent residence on the basis of an exemption under the legislation then in operation, the Aliens Control Act.2 On 13 June 1997 the first
applicant was granted the exemption and permanent residence, both of which were extended to the second applicant. B
[7] In 2001 Mrs Willis further advised the first and second applicants that they would qualify for South African citizenship. Both applicants
successfully applied for naturalisation and, within the year, were issued with temporary identity certificates. However, on 11 October 2001 the
applicants
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Company for being 'illegal aliens' on the basis of C irregularities
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released, pending the outcome of criminal charges due to be laid against them. It is common cause that their naturalisation was fraudulently
 for permanent residence on the basis of an exemption under the legislation then in operation, the Aliens Control Act.2 On 13 June 1997 the first
applicant was granted the exemption and permanent residence, both of which were extended to the second applicant. B
[7] In 2001 Mrs Willis further advised the first and second applicants that they would qualify for South African citizenship. Both applicants
successfully applied for naturalisation and, within the year, were issued with temporary identity certificates. However, on 11 October 2001 the
applicants were arrested for being 'illegal aliens' on the basis of C irregularities discovered regarding their 1997 exemptions. They were later
released, pending the outcome of criminal charges due to be laid against them. It is common cause that their naturalisation was fraudulently
obtained. The first applicant attributes the fraud to an official in the Department of Home Affairs.
[8] The first applicant was again arrested for fraud in connection with D the 1997 exemptions. After investigations, no prosecution was initiated
due to insufficient evidence.
[9] The applicants left South Africa between June and August 2002, doing so, they state, on the basis of assurances from an official within the
E Department that they could make a fresh start on their return, should they apply to re­enter and stay in South Africa. The respondents'
version is that the applicants were compelled to leave.
[10] In November 2002 the first applicant applied for and was granted permission to return to South Africa, which he did in January 2003. F
Once in the country, he applied for a work permit, which was granted. He then converted his work permit to a business permit, thus enabling
him to be self­employed. Although the first applicant claims he made full disclosure of complications regarding his previous immigration status to
the Department, the respondents dispute that the disclosure was complete. G
[11] On 12 July 2005 the first applicant applied for permanent residence status for himself and his family in terms of s 27(c) of the Immigration
Act1 3 (the Act). Once the applicants had provided the Department, at its request, with an explanation regarding their previous immigration
status, they were granted permanent residence permits in June 2006, and the H

2010 (4) SA p334

MOKGORO J
A first applicant applied for 'green identity documents', issued to permanent residents and citizens. It was when he questioned the delay in the
issuing of these documents that he was told that his application had been referred to Ms Sandra Franke, an official in the Department's
investigation section.
B [12] As part of the investigation process, the first and second applicants met with Ms Franke. On the second occasion she gave each of
them a letter dated 9 January 2007. These letters informed them, among other things, that an investigation had revealed that they had
previously obtained South African identity documents by fraudulent means and C therefore did not qualify for permanent residence after 1 July
2005; in terms of s 29(1)(f) of the Act,4 the first and second applicants were prohibited persons and did not qualify for visas, admission to
South Africa and temporary or permanent residence permits; they were to be deported and they were entitled, under s 8 of the Act,5 to
request the D Minister to review the decision to deport them.
[13] Mr Koyabe's attorney accordingly advised him to submit a written request for a review of that decision under s 8(1) of the Act.6 However,
he further advised that in order to submit a meaningful request for review, it would be necessary to ascertain the reasons for the decision. E Mr
Koyabe's attorney wrote to the Minister, requesting the reasons for the decision to withdraw or terminate their residence permits, for purposes
of the review application, to which they were entitled in terms of s 57 of the Promotion of Administrative Justice Act8 (PAJA).
[14] Between 11 January and 6 February 2007 there was a flurry of F correspondence between the applicants' attorneys and the Department.
Several letters by the applicants followed, requesting reasons for the decision to withdraw their residence permits.
[15] Ms Franke wrote to the applicants' attorneys on 7 February 2007 stating that the reasons for the decision were set out adequately in the
letters of 9 January 2007. Taking this into consideration, it is clear G that from 7 February 2007, the applicants had had three days to submit a
request for review, having been provided with all the required information. The applicants failed to do so and, therefore, Ms Franke argued, the
applicants' right to a review by the Minister had lapsed.

2010 (4) SA p335

MOKGORO J
[16] The applicants applied to the High Court for a review and the A setting aside of the Director­General's decision to withdraw their
permanent residence permits and status. They also sought interim relief, pending the finalisation of the main relief sought.
In the High Court
[17] The respondents relied on the provisions of s 7(2)(a) of PAJA,9 read B together with s 8 of the Act, which provides procedures for reviews
and appeals.1 0
[18] It was common cause that the applicants had failed to make use of the review procedure set out in s 8(1) of the Act, 'mainly or
purportedly' C for the reasons stated in the correspondence between them and Ms Franke. The High Court held that, based on Mr Koyabe's own
allegations, all relevant facts were known to them, and that the respondents' letter of 9 January 2007 'contained no mystery at all'. The court
furthermore found that the applicants and/or their attorneys were overly formalistic in insisting that the second and third respondents prove
every allegation beyond a reasonable doubt before they were prepared to take D the necessary steps towards a review.
[19] The High Court held that the applicants had not exhausted their internal remedies as required by s 7(2)(a) of PAJA, and concluded that
there were no exceptional circumstances that would allow it to exempt E the applicants from the obligation to exhaust internal remedies.1 1 The
court accordingly held that the applicants should first exhaust their internal remedy under s 8 of the Act, as required by s 7(2)(b) of PAJA,1 2
and dismissed their application with costs.
[20] The applicants sought and were denied leave to appeal in both the High Court and the Supreme Court of Appeal. F

In this court
[21] The applicants submit that their application for leave to appeal raises questions regarding the ambit of the right to just administrative G

2010 (4) SA p336

MOKGORO J
A action, protected under s 33(2) of the Constitution,
1 3 and given effect to in s 5 of PAJA.1 4 They claim that it further raises questions

about the interpretation of s 7(2) of PAJA, in the light of the right of access to courts guaranteed in s 34 of the Constitution.1 5 They argue
that the High Court failed to consider important factors necessary for a constitutional B interpretation of s 7(2) of PAJA. Specifically, they
submit that they had intended to exhaust their internal remedy as required by s 7(2), but the respondents' refusal to provide reasons for
withdrawing the residence permits precluded the applicants from meaningfully challenging that decision through internal review. Having been
informed that the time C period to apply for a ministerial review had expired, the internal remedy, they submit, was no longer available to them
to proceed as they had intended. Accordingly, they argue, to permit the respondents to rely on s 7(2) to non­suit them would be contrary to
the spirit of the Constitution.
D [22] A remedy, the applicants argue, is exhausted not only when an applicant actually exercises the right to do so. Instead, they urge the
court to accept that exhaustion may also occur when 'the time for exercising it has lapsed and the repository of the power to review refuses to
entertain the review because the time has lapsed'. They urge this court E to reject a holding that a person who did not exercise the right to an
internal remedy may invariably not institute judicial review. This, they submit, would result in an unconstitutional ouster of a court's jurisdiction,
contrary to s 34 of the Constitution.
[23] It is their further contention that even before a ministerial review, F they had a constitutional right to be furnished with reasons for the
administrator's decision as well as any further information they needed. Although the respondents relied on s 8(1),1 6 their decisions were also
based on other provisions of the Act, notably s 8(3),1 7 obliging them to provide the applicants with reasons.
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G [24] In the alternative, the applicants submit that they are entitled to reasons under s 5 of PAJA. They argue that a finding that a person
is an illegal foreigner is an adverse decision constituting administrative action
 contrary to s 34 of the Constitution.
[23] It is their further contention that even before a ministerial review, F they had a constitutional right to be furnished with reasons for the
administrator's decision as well as any further information they needed. Although the respondents relied on s 8(1),1 6 their decisions were also
based on other provisions of the Act, notably s 8(3),1 7 obliging them to provide the applicants with reasons.
G [24] In the alternative, the applicants submit that they are entitled to reasons under s 5 of PAJA.
1 8 They argue that a finding that a person

is an illegal foreigner is an adverse decision constituting administrative action

2010 (4) SA p337

MOKGORO J
as defined in s 1 of PAJA.1 9 Accordingly, they submit, they were entitled A to reasons under s 5 of PAJA, as none of the exceptions created by
s 5(4) and 5(5)2 0 was applicable in their case.
[25] It is the contention of the respondents that all decisions taken in terms of the Act are subject to review or appeal in one of two ways, the
nature of the review or appeal procedure being dependent on the nature B of the decision. First, in terms of s 8(1) of the Act, an official who
refuses

2010 (4) SA p338

MOKGORO J
A entry to any person, or finds any person to be an illegal foreigner, shall on the prescribed form inform that person that he or she may in
writing request the Minister to review that decision.2 1 The second procedure is found in s 8(4) of the Act.2 2 It pertains to decisions other
than an immigration officer's refusal of entry into the country or finding of a B person to be an illegal foreigner, which materially and adversely
affect the rights of that person. The aggrieved person may approach the Director­General within 10 working days of receiving notice of the
decision. Section 8(3) makes it compulsory to be informed of the decision in the prescribed manner.2 3
C [26] According to the respondents, the applicants deliberately attempted to conflate the procedures in s 8(1) and 8(4), effectively
submitting that PAJA should be applicable in respect of all decisions taken under the Act. That, submit the respondents, could not have been
intended by the legislature, as it would severely compromise the speedy procedures designed to ensure that where a person has been found to
be an illegal D foreigner, clarity be obtained as soon as possible. They contend that the applicants have not made use of the internal remedy
procedure and have avoided it, as it is not in their interests to do so.
[27] The respondents also submit that the applicants are not without remedy. They are still entitled to apply for condonation of the late filing E
of a review application, and may still apply to the Department to have their status as prohibited persons lifted. The effect of the High Court
judgment was to defer the applicants' entitlement to approach a court, based on PAJA they contend, and did not deny them the right to be
heard on the merits as the applicants aver.
F [28] The respondents further submit that there is nothing in s 8(1) of the Act that entitles anyone affected by an administrative decision to
reasons before an appeal. They argue that the wording of s 8 of the Act did not entail that the PAJA procedure would run concurrently with the
exercise of the internal remedy provided for in s 8(1) of the Act. The applicants were in fact not in danger of being deported at the time,
notwithstanding G that the respondents would indeed have been entitled to do so.
[29] The respondents add that the applicants were aware of the reasons for the termination of their permanent residence permits. It is
therefore reasonable to conclude that the Department's letter dated 9 January 2007, in which those reasons were spelled out, was a measure
taken out H of caution.
[30] Finally, the respondents interpret the Act to provide that a person found to be an illegal immigrant must make representations to the
Minister for review, who then responds as a matter of urgency. The Minister would, as required by PAJA, be obliged to furnish reasons for an I
adverse finding. This, the respondents submit, is the point at which PAJA becomes applicable.

2010 (4) SA p339

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Application for leave to appeal A

[31] A threshold requirement in applications for leave to appeal to this court is that the case raises or is connected with a constitutional
matter.2 4 Also important is the requirement that there be prospects of success, and ultimately, whether it is in the interests of justice to hear
a matter.2 5
Constitutional matter B

[32] The applicants raise important questions regarding the interpretation of s 7(2) of PAJA and how, in the light of this provision, s 8(1) of the
Act must be read. This court has held that '(a)s PAJA gives effect to s 33 of the Constitution, matters relating to the interpretation and C
application of PAJA will of course be constitutional matters'.2 6 Indeed at the core of the applicants' challenge is the interpretation and
application of s 7(2) of PAJA in relation to s 8(1) of the Act, in the light of the administrative­justice protections enshrined in s 33 of the
Constitution.2 7 The applicants also contend that because of the existing uncertainty relating to what constitutes exhaustion of an internal
remedy, a D person could be denied access to courts, protected under s 34 of the Constitution. The questions raised are constitutional issues
which fall squarely within the jurisdiction of this court.
Interests of justice
[33] It is in addition necessary to consider whether it is in the interests of E justice to grant the application. This matter brings to light the
need for

2010 (4) SA p340

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A clarity regarding the relationship between s 7(2) of PAJA and s 8(1) of the Act. Given the vast number of foreign nationals who take up
residence or seek refuge in South Africa, it is important to settle their rights and duties on the one hand, and those of government on the other.
It is therefore in the interests of justice that this matter be heard and leave to appeal be B granted. And I do so.
The duty to exhaust internal remedies
[34] Under the common law, the existence of an internal remedy was not in itself sufficient to defer access to judicial review until it had been C
exhausted.2 8 However, PAJA significantly transformed the relationship between internal administrative remedies and the judicial review of
administrative decisions. Section 7(2) of PAJA provides:
'(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy D provided for in any
other law has first been exhausted.
(b) 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.
E (c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust
any internal remedy if the court or tribunal deems it in the interest of justice.'

Thus, unless exceptional circumstances are found to exist by a court on F application by the affected person, PAJA, which has a broad scope
and applies to a wide range of administrative actions, requires that available

2010 (4) SA p341

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internal
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prior to judicial review of an administrative ADownloaded
[35] Internal remedies are designed to provide immediate and cost­effective relief, giving the executive the opportunity to utilise its own
 and applies to a wide range of administrative actions, requires that available

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internal remedies be exhausted prior to judicial review of an administrative A action.2 9
[35] Internal remedies are designed to provide immediate and cost­effective 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
B access to justice, the importance of more readily available and cost­effective internal remedies cannot be gainsaid.
30

[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 C process premature, effectively usurping the executive role and
function.3 1 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 D

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A nature of the administrative action and circumstances of the particular case.
3 2 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 B relation to matters entrusted to other branches 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 C identity of the decision­maker. 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 decision­maker.' D 3 3

Once an administrative task is completed, it is then for the court to perform its review responsibility, to ensure that the administrative action or
decision has been performed or taken in compliance with the relevant E constitutional and other legal standards.3 4
[37] Internal administrative remedies may require specialised knowledge which may be of a technical and/or practical nature.3 5 The same holds
true for fact­intensive cases where administrators have easier access to the relevant facts and information. Judicial review can only benefit
from F a full record of an internal adjudication, particularly in the light of the

2010 (4) SA p343

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fact that reviewing courts do not ordinarily engage in fact­finding and A hence require a fully developed factual record.
[38] The duty to exhaust internal remedies is therefore a valuable and necessary requirement in our law. However, that requirement should not
be rigidly imposed. Nor should it be used by administrators to frustrate the efforts of an aggrieved person or to shield the administrative
process B from judicial scrutiny. PAJA recognises this need for flexibility, acknowledging in s 7(2)(c) that exceptional circumstances may require
that a court condone non­exhaustion of the internal process and proceed with judicial review nonetheless.3 6 Under s 7(2) of PAJA, the
requirement that an individual exhaust internal remedies is therefore not absolute. C
[39] What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative
action at issue.3 7 Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant
to approach the court directly. So too where an internal appellate tribunal D has developed a rigid policy which renders exhaustion futile.
[40] The principle of exhaustion of domestic remedies is recognised in international law, albeit in a different context.3 8
International law E

[41] A useful analogous requirement in international law is the customary international law duty to exhaust available domestic remedies before
approaching an international tribunal.3 9 This international law principle was developed to provide states with the opportunity to address alleged
violations and disputes through their own internal processes before resorting to intervention by an international tribunal. This affords states F
the opportunity to find their own solutions and to make beneficial use of their access to relevant facts, information, as well as their familiarity
with the technicalities of the dispute. In the international context:
'A condition for the application of the local remedies rule is that it must G first be determined whether those remedies exist, which implies the corresponding
duty of the State to provide them. . . . Thus, the process of exhaustion is not the essence or raison d'etre of the rule; it is the actual

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A redress for the wrong suffered that constitutes its fundamental element and ultimate purpose. Furthermore, the remedies to be exhausted include all those
that are afforded under the municipal law of the accused State and are capable of addressing the alleged wrongs.'4 0
[Footnote omitted.]

B [42] The approach of the African Commission on Human and Peoples' Rights (African Commission) is that a remedy must be 'available,
effective and sufficient' to redress the complaint.4 1 In this regard, the African Commission has decided that:
'A remedy is considered available if the petitioner can pursue it without C impediment, it is deemed effective if it offers a prospect of success, and it is found
sufficient if it is capable of redressing the harm complaint.'4 2

[43] In order to qualify as an available remedy, it is the approach of the African Commission that a complainant must have the ability to make
use of the remedy in the circumstances of his or her case.4 3 Similarly, the D Inter­American Commission on Human Rights has interpreted the
duty to exhaust domestic remedies as existing only when these remedies formally exist and are adequate to protect the legal interest infringed.
They must also be effective to produce the result for which they were intended.4 4
E [44] In a constitutional democracy like ours, where the substantive enjoyment of rights has a high premium, it is important that any existing

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administrative remedy be an effective one.4 5 A remedy will be effective if A it is objectively implemented, taking into account the relevant
principles and values of administrative justice present in the Constitution and our law. An internal remedy must also be readily available and it
must be possible to pursue without any obstruction, whether systemic or arising from unwarranted administrative conduct. Factors such as
these will be taken into account when a court determines whether exceptional B circumstances exist, making it in the interests of justice to
intervene.
[45] Thus, as the international jurisprudence illustrates, judicial enforcement of the duty to exhaust internal remedies, in giving content to the
'exceptional circumstances' exemption, must consider the availability, effectiveness and adequacy of the existing internal remedies. C
The proper interpretation of s 7(2) of PAJA
[46] The applicants aver, that to impose the internal remedy requirement rigidly, would result in an unconstitutional ouster of a court's D
jurisdiction. Section 7(2)(a) of PAJA provides that a court shall review administrative action only when all relevant internal remedies provided for
in any other law are exhausted. The provision therefore does not preclude courts from exercising their judicial review jurisdiction. A court must
exercise its judicial review powers once one of two circumstances arises: when all available internal administrative remedies are found to E have
been exhausted or when exceptional circumstances are found to exist.
[47] Although the duty to exhaust defers access to courts, it must be emphasised that the mere lapsing of the time period for exercising an
internal remedy on its own 4 6 Someone seeking to
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avoid administrative redress would, if it were otherwise, simply wait out the specified time­period and proceed to initiate judicial review. That
 in any other law are exhausted. The provision therefore does not preclude courts from exercising their judicial review jurisdiction. A court must
exercise its judicial review powers once one of two circumstances arises: when all available internal administrative remedies are found to E have
been exhausted or when exceptional circumstances are found to exist.
[47] Although the duty to exhaust defers access to courts, it must be emphasised that the mere lapsing of the time period for exercising an
internal remedy on its own would not satisfy the duty to exhaust, nor F would it constitute exceptional circumstances.4 6 Someone seeking to
avoid administrative redress would, if it were otherwise, simply wait out the specified time­period and proceed to initiate judicial review. That
interpretation would undermine the rationale and purpose of the duty. Thus, an aggrieved party must take reasonable steps to exhaust available
internal remedies with a view to obtaining administrative redress. The G applicants relied in this regard on the decision in Kiva v Minister of
Correctional Services.4 7 To the extent that this decision indicates otherwise, it cannot be endorsed.
[48] This is not to say, however, that if an aggrieved party had made an attempt in good faith to exhaust internal remedies, but had been H
frustrated in his or her efforts to do so, a court would be prevented from granting the exemption. It is for the court to determine, on a case­by­
case basis, whether circumstances exist for judicial intervention.
[49] Given the valuable purposes that the 'internal remedies' requirement fulfils, the applicants' contention that s 7(2) of PAJA should be I

2010 (4) SA p346

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A interpreted not to require their exhaustion, but merely to impose a time period, cannot be sustained.
Internal remedies under s 8 of the Act
[50] The Immigration Act has as its objective the important task of B regulating the admission of foreign nationals to, their residence in, and
their departure from South Africa.4 8 In particular, s 8 of the Act provides for internal administrative review and appeal procedures regarding
decisions taken in terms thereof, for those seeking to challenge administrative decisions. It is convenient to set out the provisions of s 8 in full:
C '(1) 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 ­
(a) if he or she arrived by means of a conveyance which is on the point of departing and is not to call at any other port of entry in the D Republic, that
request shall without delay be submitted to the Minister; or
(b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the Minister within three days after that decision.
(2) A person who was refused entry or was found to be an illegal E foreigner and who has requested a review of such a decision ­
(a) 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; or
(b) in a case contemplated in subsection (1)(b), shall not be removed F from the Republic before the Minister has confirmed the relevant decision.
(3) Any decision in terms of this Act, other than a decision contemplated in subsection (1), that materially and adversely affects the rights of any person, shall
be communicated to that person in the prescribed manner and shall be accompanied by the reasons for that G decision.
(4) An applicant aggrieved by a decision contemplated in subsection (3) may, within 10 working days from receipt of the notification contemplated in subsection
(3), make an application in the prescribed manner to the Director­General for the review or appeal of that decision.
H (5) The Director­General shall consider the application contemplated in subsection (4), whereafter he or she shall either confirm, reverse or modify that
decision.
(6) An applicant aggrieved by a decision of the Director­General contemplated in subsection (5) may, within 10 working days of receipt of that decision, make
an application in the prescribed manner to the I Minister for the review or appeal of that decision.
(7) The Minister shall consider the application contemplated in subsection (6), whereafter he or she shall either confirm, reverse or modify that decision.'

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[51] Section 8 thus establishes two channels for review. One route is A created under s (1) and the other under s 8(4). The procedure
applicable in a particular case will depend on the nature of the administrative decision. In s 8(1), a person refused entry into the country or
found to be an illegal foreigner must be notified of his or her right to request in writing that the Minister review that decision. If the affected
person B arrived on a conveyance about to leave the country, the request must be communicated to the Minister without delay.4 9 Should the
Minister's response not be obtained by the time the conveyance departs, the person shall leave and await the Minister's decision outside of the
country.5 0 In any other case, the affected person has three days within which to lodge a review application and may not be deported unless
and until the C Minister has confirmed the decision.5 1 Presumably the review must occur within a reasonable timeframe.
[52] The procedure established under s 8(1) stands in contrast to that provided for under s 8(4). In all cases other than those contemplated in
D s 8(1), where a decision has materially and adversely affected a person's rights, the decision shall be communicated in the prescribed manner
and reasons shall be furnished.5 2 Under s 8(4), the affected person may, within 10 working days, request a review or appeal to the Director­
General. Within a further 10 days of the receipt of the Director­General's decision, the person may seek a ministerial review or appeal.5 3 E

[53] An application in terms of s 8(1) is therefore more urgent and provides aggrieved parties with a direct route to the Minister. Further, a
person affected by a decision falling under s 8(1)(b) is protected from deportation, pending the Minister's review and confirmation. Section 8
thus provides a detailed internal remedy structure designed to afford aggrieved persons administrative relief as a first step towards F addressing
their claims.
[54] The internal remedies under s 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 G 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 systems, and must take reasonably speedy, yet constitutionally compliant steps, H to resolve questions about the legality of the
presence of foreign nationals in its territory. Section 8(1) provides this opportunity. It is thus the procedure under s 8(1) and not that under s
8(4) which is applicable in the applicants' case.

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A [55] The constitutionality of s 8(1) and the time period it stipulates for a review application is however not before this court, and this
judgment remains silent on that issue. 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 B judicial review under PAJA, unless exceptional
circumstances exist.
Were the applicants entitled to reasons?
[56] The applicants had been notified of the decision declaring them prohibited persons in terms of s 29(1)(f) of the Act. Because the decision
fell under s 8(1), Ms Franke notified them on the prescribed form of the C three days within which they might request a review. Indeed, the first
and second applicants indicated their intention to do so once adequate reasons had been provided.
[57] The appropriate response on the part of the applicants at that stage was to request a ministerial review in terms of s 8(1). Section 8(1) of
the D Act required that the applicants request an administrative review before resorting to the courts.
[58] The applicants submit that they were unable to request a review without first receiving reasons for the decision declaring them illegal
foreigners. Instead, they argue, they were presented with a series of E findings and conclusions of law, as opposed to reasons which, they
submit, they were entitled to under s 5 of PAJA.
[59] Whereas decisions made under s 8(3) of the Act require that communication to the aggrieved person 'shall be accompanied by the F
reasons for that decision', the Act states that a person found to be an illegal foreigner shall under s 8(1) be notified 'on the prescribed form'.
The respondents seem to interpret this to mean that under s 8(1) they were not obliged to provide the applicants with reasons, although they
hadJuta
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G [60] Section 33(2) of the Constitution provides a right to written reasons to those whose rights have been adversely affected by
 submit, they were entitled to under s 5 of PAJA.
[59] Whereas decisions made under s 8(3) of the Act require that communication to the aggrieved person 'shall be accompanied by the F
reasons for that decision', the Act states that a person found to be an illegal foreigner shall under s 8(1) be notified 'on the prescribed form'.
The respondents seem to interpret this to mean that under s 8(1) they were not obliged to provide the applicants with reasons, although they
had nonetheless done so. This cannot be so.
G [60] Section 33(2) of the Constitution provides a right to written reasons to those whose rights have been adversely affected by
administrative action. Indeed PAJA, which was enacted to give effect to this and other administrative justice rights,5 4 states in its preamble
that part of the purpose of giving effect to these rights is to ­
'create a culture of accountability, openness and transparency in the H public administration or in the exercise of a public power or the performance of a public
function. . . .'

In keeping with this important goal, s 5 of PAJA must be viewed as giving I effect to s 33(2) of the Constitution.5 5 These two provisions read

2010 (4) SA p349

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together entitle the applicants to reasons. The respondents were thus A incorrect in their contention that the applicants were not entitled to
reasons for the immigration officer's decision to withdraw their residence permits, and that there was no obligation on their part to furnish
reasons.
[61] The declaration that a person is an illegal foreigner under s 8(1) B impacts adversely on him or her. In addition to having to leave the
country, it stigmatises the person and may become a basis for denial of entry into other foreign countries. As a consequence, a person will be
anxious to know the basis for the declaration, particularly in circumstances where it might be based on a misunderstanding or incorrect C
information. In that regard, the person may want to appeal or have the decision reviewed and set aside by a higher authority. Reasons for the
finding, as in this case, are therefore important in seeking a meaningful review by the Minister and in enhancing the chances of getting the
immigration agent's adverse finding overturned.
[62] Further, in our constitutional democracy, officials are enjoined D to ensure that the public administration is governed by the values
enshrined in our Constitution.5 6 Providing people whose rights have been adversely affected by administrative decisions with reasons, will often
be important in providing fairness, accountability and transparency. In the context of a contemporary democratic public service like E ours,
where the principles of batho pele,5 7 coupled with the values of

2010 (4) SA p350

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58
A ubuntu, enjoin the public service to treat people with respect and dignity and avoid undue confrontation, the Constitution indeed entitles
the applicants to reasons for the decision declaring them illegal foreigners. It is excessively over­formalistic and contrary to the spirit of the
Constitution for the respondents to contend that under s 8(1) they were B not obliged to provide the applicants with reasons.
[63] Although the reasons must be sufficient, they need not be specified in minute detail, nor is it necessary to show how every relevant fact
weighed in the ultimate finding.5 9 What constitutes adequate reasons C will therefore vary, depending on the circumstances of the particular
case.6 0 Ordinarily, reasons will be adequate if a complainant can make out a reasonably substantial case for a ministerial review or an appeal.
[64] In Maimela,6 1 the factors to be taken into account to determine the adequacy of reasons were succinctly and helpfully summarised as D
guidelines, which include ­
'the factual context of the administrative action, the nature and complexity of the action, the nature of the proceedings leading up to the action and the nature
of the functionary taking the action. Depending on the circumstances, the reasons need not always be ''full written reasons''; the ''briefest pro forma reasons
may suffice''. Whether brief or lengthy, E reasons must, if they are read in their factual context, be intelligible and informative. They must be informative in the
sense that they convey why the decision­maker thinks (or collectively think) that the administrative action is justified.'6 2 [Footnotes omitted.]

F The purpose for which reasons are intended, the stage at which these reasons are given, and what further remedies are available to contest
the administrative decision are also important factors. The list, which is not a closed one, will hinge on the facts and circumstances of each
case and the test for the adequacy of reasons must be an objective one.

2010 (4) SA p351

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Were the applicants provided with adequate reasons? A

[65] When Ms Franke informed the applicants of the invalidity of their permanent residence permits, she notified them to that effect on a form
prescribed under s 8(1) and also presented them each with a letter indicating more fully the basis for the decision. The letters made reference
to the meeting of 30 November 2006 between them B and Ms Franke, when, on the applicants' own version, she informed them that she was
investigating the 2001 'illegal aliens' charges against them. In those letters Ms Franke also informed them of her findings, as follows:
'I have to inform you that an investigation into your residence status in C the Republic of South Africa has revealed that you have previously obtained a South
African identity document by fraudulent means. In terms of s 25(3) of the Immigration Act 13 of 2002, as amended, you therefore, did not qualify for permanent
residence status subsequent to 1 July 2005. Section 25(3) clearly stipulates that permanent residence shall be issued on condition that the holder is not a
prohibited person or an undesirable person. D
You are in terms of s 29(1)(f) of the Immigration Act, a prohibited person for being found in possession of a fraudulent identification document. As a prohibited
person, you do not qualify for a visa, admission into the Republic, a temporary residence or a permanent residence permit.' E

[66] The contents of the letter are clear. The applicants were declared prohibited persons because they obtained their identity documents
fraudulently. On that basis they had been declared illegal immigrants. Simply put, their presence in the country was unlawful and they had to
leave or be deported. Considered in the context of the earlier meeting where Ms Franke discussed the allegations of fraud against them, the F
basis for the withdrawal of their residence permits could not have been clearer.
[67] Subsequent to receiving the letters, however, the applicants, invoking the Promotion of Access to Information Act6 3 (PAIA), proceeded to
request a barrage of information from the respondents. They sought, G among other things, all documents held by the Department relating to
its investigation into their residence status between 2001 and 2003. They also requested all documents held by the Department relating to the
investigation into their residence status and related decisions.
[68] Indeed, as the High Court noted, the applicants wanted the second H and third respondents to prove almost every allegation beyond a
reasonable doubt before they took the required steps to seek a ministerial review. They also raised a plethora of questions regarding the
decision to terminate their permanent residence status and the validity and legality of that decision. These challenges, based on s 6(2) of
PAJA,6 4 ought I

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A properly to have been the grounds of their review application. The answers they sought were not necessary for the purposes of a review
application. The reasons for the withdrawal of their residence permits were thus adequate to enable them to request a meaningful review by the
Minister. The nature of the information they sought would instead have been more appropriately sought from the Minister, in the event that she
B confirmed Ms Franke's decision.

[69] I conclude therefore that the applicants' judicial review application was premature and that they were first required to exhaust the
available ministerial review. In the light of this conclusion, the judgment makes no finding with regard to the applicants' challenge against the
decision to C withdraw their residence permits.
[70] In the light of the fact that the applicants had been provided with adequate reasons for the purposes of a ministerial review, the High
Court D held that they ought to have proceeded with the internal ministerial
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2010 (4) SA p353
 available ministerial review. In the light of this conclusion, the judgment makes no finding with regard to the applicants' challenge against the
decision to C withdraw their residence permits.
[70] In the light of the fact that the applicants had been provided with adequate reasons for the purposes of a ministerial review, the High
Court D held that they ought to have proceeded with the internal ministerial

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review under s 8 before instituting judicial review proceedings in the A High Court.
Section 5 of PAJA
[71] The applicants argue that s 5 of PAJA6 5 also entitles them to request reasons before review by the Minister. In the light of the finding that
the B

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A applicants were given adequate reasons, the applicants' argument based on s 5 of PAJA falls away.
Exceptional circumstances
[72] In the High Court, the applicants sought an order granting them an B exemption from the duty to exhaust available internal remedies in
terms of s 7(2)(c) of PAJA.
[73] Section 7(2)(c) of PAJA permits a court to condone a failure to exhaust internal remedies in exceptional circumstances, when it is in the
interests of justice to do so. The applicants show no exceptional C circumstances as a basis for a claim to be exempted from exhausting the
available internal remedy. Their only contention is that they had not been provided with reasons enabling them to apply for a review, and that
the respondents had indicated that the time period for them doing so had lapsed. In Nichol,6 6 the Supreme Court of Appeal noted, in
interpreting s 7(2)(c) of PAJA, that allegations of procedural or substantive administrative D irregularities do not on their own constitute
exceptional circumstances in review proceedings.
[74] Throughout this litigation, the applicants have had the benefit of legal representation. Based on the information at their disposal, a E
meaningful review, as this judgment finds, was thus well within their reach. I find no justifiable basis for the applicants' failure to institute
ministerial review proceedings, as was required by s 8(1) of the Act read with s 7(2) of PAJA. I agree with the High Court's conclusion that no
exceptional circumstances existed to warrant an exemption from the duty to exhaust internal remedies.
F Submissions by the amicus curiae
[75] Lawyers for Human Rights has been admitted as amicus curiae in these proceedings. Its Refugee and Migrant Rights Project specialises in
defending the rights of refugees, asylum seekers and other marginalised G migrants in South Africa. The amicus curiae describes its interest in
this matter as that of a party that regularly represents people detained by the Department in urgent habeas corpus applications. It also
represents immigrants facing deportation.
H [76] The amicus curiae contends that the Department has adopted a deliberate and routine strategy of raising the duty to exhaust internal
remedies, when court proceedings are instituted by applicants seeking orders that they be released from detention or not be deported. It
argues that the proper consideration of the relationship between s 7(2) of PAJA and s 8 of the Act requires an understanding of the practical
difficulties I that arise when invoking internal remedies under the Act.

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[77] The amicus curiae submits that many of the people who would A theoretically be able to make use of the internal remedies in the Act are
unable to do so in practice, and that this is the case for many who are detained at the Lindela Holding Facility.6 7 Many detainees do not have
access to legal counsel and are unaware of their right to lodge an internal appeal. Even where detainees are aware of their rights, the amicus
curiae B submits, these rights are disregarded by immigration officials. Detainees have no access to writing materials and often cannot
comprehend the relevant procedures. All the prescribed forms are available only in English and there are no interpreters at Lindela. Further, when
internal appeals are occasionally launched, the Minister delegates her review authority to the same officials within the detention facility,
defeating C much of the purpose of an objective review process.
[78] This court is urged to hold that, properly interpreted, s 7(2) of PAJA cannot bar a court's adjudication of a habeas corpus petition. This is
so, it is argued, because s 7(2)(a) does not speak to habeas corpus petitions. D In the alternative, it was argued that habeas corpus
applications always constitute exceptional circumstances. Further, and in the alternative, the amicus curiae requests the court to decline to
make a definitive ruling on this point, but nonetheless to distinguish the present case from those involving urgent habeas corpus petitions.
[79] The amicus curiae further argued that, although this matter does E not involve a habeas corpus application or one seeking to halt an
impending deportation, this court has, in the past, been willing to provide guidance to lower courts, notwithstanding the fact that the issues
were moot, and that this court should provide similar guidance to lower courts in this matter.6 8 A further contention is that the issues raised
are F unlikely ever to be reviewed by this court because of its unsuitability and reluctance to sit as an urgent court. For these reasons, it is
contended, these submissions should be given effect by this court.
[80] Amici curiae have made and continue to make an invaluable contribution to this court's jurisprudence.6 9 Most, if not all, constitutional G
matters present issues, the resolution of which will invariably have

2010 (4) SA p356

MOKGORO J
A an impact beyond the parties directly litigating before the court. Constitutional litigation by its very nature requires the determination of
issues squarely in the public interest, and insofar as amici introduce additional, new and relevant perspectives, leading to more nuanced judicial
decisions, their participation in litigation is to be welcomed and B encouraged.7 0
[81] The amicus curiae's submissions raise matters of concern regarding the application of s 7(2) of PAJA to vulnerable immigrants in detention.
That is not the position of the applicants, who are not in detention. In addition, they have full legal representation. This is not a habeas corpus
C case. How s 7(2) should be interpreted and applied in the situation of detained foreign nationals and habeas corpus applications, and the
extent to which the authorities must be proactive in enabling detained people to avail themselves of their procedural rights,7 1 are matters that
require full ventilation in a properly prepared case on another day. This approach is consistent with this court's reasoning in In re Certain Amicus
Curiae D Applications,7 2 holding that:
'The role of an amicus is to draw the attention of the Court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for
the privilege of participating in the proceedings

2010 (4) SA p357

MOKGORO J
without having to qualify as a party, an amicus has a special duty to the A Court. That duty is to provide cogent and helpful submissions that assist the Court.
The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already
before the Court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence.'7 3 B

Having said that, this judgment should not be interpreted to prejudice any potential future causes of action seeking to challenge the
government's application of s 7(2) to other immigration contexts such as those involving immigrants facing imminent deportation, including those
being denied access to courts when they bring habeas corpus applications C in the practical circumstances defined by the amicus curiae.7 4
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Conclusion
 before the Court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence.'7 3 B

Having said that, this judgment should not be interpreted to prejudice any potential future causes of action seeking to challenge the
government's application of s 7(2) to other immigration contexts such as those involving immigrants facing imminent deportation, including those
being denied access to courts when they bring habeas corpus applications C in the practical circumstances defined by the amicus curiae.7 4
Conclusion
[82] The reasons provided to the applicants on the prescribed forms, together with those contained in the letter dated 9 January 2007, were D
adequate for them to proceed with applications for a ministerial review of Ms Franke's decision, withdrawing their residence permits. The
applicants have not shown that exceptional circumstances exist for them to proceed directly with judicial review. The applicants have therefore
not yet exhausted the available internal remedy under s 8(1) of the Act and ought not to have instituted judicial proceedings in the High Court.
E

[83] Section 7(2)(b) of PAJA states:

'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 F remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.'

In the light of this provision, the applicants are directed to proceed within seven days of this judgment with an application for a review of the
decision withdrawing their permanent residence status, before they embark on a judicial review, if necessary. G
Costs
[84] The applicants appeal against the costs orders in the High Court made with respect to the interim and main relief they sought in that H
court, on the basis that the High Court misdirected itself by finding that they had no basis for launching an urgent application for interim relief.
They submit that the respondents' letter dated 7 February 2007 made it clear that their deportation had been ordered; they no longer had
internal remedies; and they had to leave the Republic, all of which prompted them to launch an urgent application. They further argue that I
the respondents implicitly acknowledged the need for an application for urgent interim relief, when in the High Court they made an undertaking

2010 (4) SA p358

MOKGORO J
A not to deport the applicants pending finalisation of the matter. Even in the event that they were unsuccessful in this court, the applicants
submitted, during oral argument, there ought to be no order as to costs.
[85] The respondents contend that at no stage have they attempted to or indicated that they would summarily deport the applicants. They
argue B that they are sensitive to the particular circumstances of persons who have been found to be illegal foreigners and would have given
the applicants more than reasonable opportunity to wind up their affairs before deportation. Finally, they contend that due to the fact that the
applicants' main application was subsequently dismissed, their initial C undertakings were found not to have been necessary. It was thus
appropriate for the reserved costs to have followed those of the main application. On the other hand, they argued that this application be
dismissed with costs.
[86] The attitude of the applicants in insisting on being provided with D adequate reasons before they instituted ministerial review of Ms
Franke's decision, where the basis for that decision was clearly spelt out in the letters of 9 January 2007, was not reasonable. They should at
that stage have applied for ministerial review, particularly since they had benefited from legal assistance throughout. I can find no basis for a
finding that the High Court misdirected itself by ordering costs against them, as the E applicants contend. The High Court's order as to costs in
that court is therefore confirmed.
[87] The question of costs in this court was particularly contentious. Although the applicants have been largely unsuccessful, they have raised
F important constitutional questions which serve the public interest; and it is in the interests of justice that this matter be finally resolved by
this court.7 5 In the same way, even though the applicants insisted on going to court despite having received adequate reasons, the over­
formalistic conduct of the respondents, who treated the applicants as though they have no right to reasons in the first place, was unhelpful and
not without G fault. Finally, although the applicants' approach to the litigation, resorting to premature judicial review, might have created undue
delay of the process and inconvenience to the respondents, a costs order against them would not be just and equitable. In the result, there is
no order as to costs in this court.
H Order
[88] In the result, the following order is made:
1. The application for leave to appeal is granted.
2. The application of Lawyers for Human Rights to be admitted as amicus curiae is granted.
I 3. The appeal is dismissed.

2010 (4) SA p359

MOKGORO J
4. The costs order in the North Gauteng High Court is confirmed. A

5. There is no order as to costs in this court.

Langa CJ, Moseneke DCJ, Cameron J, Nkabinde J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J concurred. B

Applicants' Attorneys: Chris Watters, Johannesburg.

Respondents' Attorneys: State Attorney, Pretoria.
Attorneys for the Amicus Curiae: Lawyers for Human Rights. C

1 Koyabe and Others v Minister of Home Affairs and Others (TPD case No 4754/2007, North Gauteng High Court, Pretoria, 18 January 2008, Fabricius AJ), as yet
unreported.
2 96 of 1991.
1 3 13 of 2002. Section 27(c) provides, in part, that:
'The Director­General may issue a permanent residence permit to a foreigner of good and sound character who ­
...
(c) intends to establish or has established a business in the Republic and investing in it or in an established business the prescribed financial contribution to be part
of the intended book value, and to the members of such foreigner's immediate family. . .'.
4 Section 29(1)(f) provides:
'(1) The following foreigners are prohibited persons and do not qualify for a visa, admission into the Republic, a temporary or a permanent residence permit:
...
(f) anyone found in possession of a fraudulent residence permit, passport or identification document.'
5 See para [50] below.
6 Id.
7 See n65 below.
8 3 of 2000.
9 Section 7(2)(a) of PAJA provides:
'Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has
first been exhausted.'
1 0 See para [50] below.
1 1 Section 7(2)(c) of PAJA provides:
'A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal
remedy if the court or tribunal deems it in the interest of justice.'
1 2 Section 7(2)(b) of PAJA provides:
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'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.'
 'Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has
first been exhausted.'
1 0 See para [50] below.
1 1 Section 7(2)(c) of PAJA provides:
'A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal
remedy if the court or tribunal deems it in the interest of justice.'
1 2 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.'
1 3 Section 33(2) of the Constitution provides:
'Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.'
1 4 See n65 below.
1 5 Section 34 of the Constitution provides:
'Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum.'
1 6 See para [50] below.
1 7 Id.
1 8 See n65 below.
1 9 Section 1 of PAJA provides:
'"administrative action" means any decision taken, or any failure to take a decision, by ­
(a) an organ of State, when ­
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation; or
(b) a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal effect, but does not include ­
(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (f),
(g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121(1) and (2), 125(2)(d), (e) and (f),
126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the
Special Investigating Units and Special Tribunals Act 74 of 1996, and the judicial functions of a traditional leader under customary law or any other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the appointment of a judicial officer, by the Judicial Service Commission;
(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or
(ii) any decision taken, or failure to take a decision, in terms of section 4(l).'
2 0 See n65 below.
2 1 See para [50] below.
2 2 Id.
2 3 Id.
2 4 Section 167(3)(b) of the Constitution.
2 5 S v Shaik and Others 2008 (2) SA 208 (CC) (2008 (1) SACR 1; 2007 (12) BCLR 1360; [2007] ZACC 19) at para 15. See also African Christian Democratic Party v
Electoral Commission and Others 2006 (3) SA 305 (CC) (2006 (5) BCLR 579; [2006] ZACC 1) at paras 17 ­ 18; Phillips and Others v National Director of Public
Prosecutions 2006 (1) SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274; [2005] ZACC 15) at para 30; Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC 24) at para 19; S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1;
2001 (1) BCLR 36; [2000] ZACC 25) in para 12.
2 6 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15) at para 25.
2 7 Section 33 of the Constitution provides:
'(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.'
2 8 Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) at para 15. For an historical and analytical account of the duty to exhaust
internal remedies in South African administrative law see Pretorius 'The Wisdom of Solomon: The Obligation to Exhaust Domestic Remedies in South African
Administrative Law' (1999) 116 SALJ 113. Discussing the duty to exhaust internal remedies at common law, Hoexter notes the following:
'The mere existence of an internal remedy is not enough by itself to indicate an intention that the remedy must first be exhausted. . . . (T)here is no general principle
at common­law that an aggrieved person may not go to court while there is hope of extrajudicial redress. In fact, there are indications that the existence of a
fundamental illegality, such as fraud or failure to make any decisions at all, does away with the common­law duty to exhaust domestic remedies altogether.'
[Footnotes omitted.]
Hoexter Administrative Law in South Africa (Cape Town, Juta 2007) at 479. For a further analysis of the common­law duty to exhaust, as well as an argument favouring
the common­law approach, see Plasket 'The Exhaustion of Internal Remedies and Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000' (2002) 119 SALJ
50.
2 9 The Supreme Court of Appeal has noted in Nichol above n28 at para 15:
'It is now compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies unless exempted from doing so by way of a successful application
under s 7(2)(c). Moreover, the person seeking exemption must satisfy the court of two matters: first that there are exceptional circumstances and second, that it is in
the interest of justice that the exemption be given.'
3 0 The Constitution obliges the public administration to promote certain values which foster an accountable, cost­effective, transparent and efficient administration.
These values are outlined in s 195(1)(b), which requires that an '(e)fficient, economic and effective use of resources must be promoted'; s 195(1)(e), which requires
that the needs of people 'must be responded to'; s 195(1)(f), which requires that public administration 'must be accountable'; and s 195(1)(g), which requires that
'(t)ransparency must be fostered by providing the public with timely, accessible and accurate information'. See also Hoexter above n28:
'Courts are unable to adjudicate effectively on many specialised matters, while administrative bodies are able to do this more informally, quickly, cheaply and
expertly ­ and not necessarily any less justly.'
(At 52.)
'In the South African context, however, the advantages of speed, efficiency and expertise cannot be taken for granted as they may perhaps be in older and more
established administrative systems.'
(At 64.)
3 1 In Bato Star above n26 at para 45, this court affirmed the following:
'The Court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within
the bounds of reasonableness as required by the Constitution.'
See also Burns & Beukes Administrative Law under the 1996 Constitution 3 ed (Durban, LexisNexis 2006) at 471; and Pretorius (above n28) at 115.
3 2 See Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) (2005 (4) BCLR 347; [2004] ZACC 19) at paras 113 ­ 114;
Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA) at paras 13 ­ 14; Minister of Public Works and Others v Kyalami
Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652; [2001] ZACC 19) at para 101; President of the
Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11) at para 219.
3 3 Above n26 at para 48.
3 4 Section 7(2) of PAJA. See also the preamble of PAJA.
3 5 Hoexter above n30 at 63, suggests that 'where the public interest and the application of policy predominate . . . it becomes appropriate for appeal to lie to a
suitably qualified and politically more accountable official or body'. (Footnote omitted). She explains that:
'Effective administrative appeal tribunals breed confidence in the administration as they give the assurance to all aggrieved persons that the decision has been
considered at least twice and reaffirmed. More importantly, they include a second decision­maker who is able to exercise a "calmer, more objective and reflective
judgment" in reconsidering the issue.'
3 6 See also s 6(1) of PAJA.
3 7 Nichol above n28 at paras 16 ­ 17.
3 8 For an in­depth overview of this principle in international law, see Amerasinghe Local Remedies in International Law (Cambridge University Press, New York, 2004).
3 9 See the Interhandel Case (Switzerland v United States) Preliminary Objections, 1959 ICJ Reports 6, where the International Court of Justice stated at 27:
'The rule that local remedies must be exhausted before international proceedings may be instituted is a well­established rule of customary international law . Before
resort may be had to an international court it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its
own means, within the framework of its own domestic legal system.'
4 0 Udombana 'So Far, so Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples' Rights' (2003) 97 American Journal of
International Law 1 at 5 ­ 6.
4 1 Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) in para 31. See also McCarthy v Madigan 503 US 140 (1992) where Justice Blackmun held at 144, that the
threshold question in an exhaustion inquiry is legislative intent. Where Congress specifically mandates exhaustion, it is required. Absent this, judicial discretion governs,
although exhaustion principles should always be fashioned so as to be consistent with legislative intent and the statutory scheme. He held further, at 145 ­ 148, that
exhaustion serves two general purposes. First, it protects agency authority, especially where action under review involves agency discretionary power or special
expertise. Second, it promotes judicial efficiency by giving agency opportunity to correct its own errors, and creates a record for the court. Justice Blackmun further
recognised exceptions to the exhaustion requirement, where the interests of the individual in obtaining judicial intervention outweigh the institutional interest in
exhaustion: (a) where it may prejudice subsequent court action (for example, an unreasonable or indefinite time frame for administrative action); (b) where there is
doubt whether the agency can grant effective relief; and (c) where the administrative body is biased or has predetermined the issue.
4 2 Jawara above n41 at para 32.
4 3 Id in para 33.
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4 4 Juta andSao
Parque Company
Lucas v(Pty) Ltd.
Brazil, case 10.301 IACHR Report No 40/03 (2003) in para 31. Downloaded : Thu Sep 04 2025 17:54:02 GMT+0200 (South Africa Standard Time)
4 5 Reed and Others v Master of the High Court of SA and Others [2005] 2 All SA 429 (E) at para 20.
4 6 See Nichol above n28 at para 32.
 expertise. Second, it promotes judicial efficiency by giving agency opportunity to correct its own errors, and creates a record for the court. Justice Blackmun further
recognised exceptions to the exhaustion requirement, where the interests of the individual in obtaining judicial intervention outweigh the institutional interest in
exhaustion: (a) where it may prejudice subsequent court action (for example, an unreasonable or indefinite time frame for administrative action); (b) where there is
doubt whether the agency can grant effective relief; and (c) where the administrative body is biased or has predetermined the issue.
4 2 Jawara above n41 at para 32.
4 3 Id in para 33.
4 4 Parque Sao Lucas v Brazil, case 10.301 IACHR Report No 40/03 (2003) in para 31.
4 5 Reed and Others v Master of the High Court of SA and Others [2005] 2 All SA 429 (E) at para 20.
4 6 See Nichol above n28 at para 32.
4 7 (2007) 28 ILJ 597 (E) ([2007] 1 BLLR 86).
4 8 See the long title of the Act.
4 9 Id at s 8(1)(a).
5 0 Id at s 8(2)(a).
5 1 Id at s 8(2)(b).
5 2 Id at s 8(3).
5 3 Id at s 8(6).
5 4 See the long title of PAJA which states that it was enacted in order '(t)o give effect to the right to administrative action that is lawful, reasonable and procedurally
fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996; and to provide
for matters incidental thereto'.
5 5 Section 5(1) of PAJA states:
'Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90
days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the
administrator concerned furnish written reasons for the action.'
[My emphasis.]
A person who has not been given reasons for an administrative decision that adversely affects his or her rights is entitled to request reasons, which indicates a prior
entitlement to reasons in the first place. Section 33(2) of the Constitution provides:
'Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.'
5 6 See s 195(1) of the Constitution.
5 7 Batho pele, which means 'People First' in Sotho, requires that public administration should serve the best interests of the public by enabling the achievement of
individual rights encompassed in the provisions of the Constitution. See Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR
1167; [2007] ZACC 16) at 71. In practice this requires that the administration work towards achieving high standards of professional ethics and responsiveness to the
needs of people; the provision of service which is impartial, fair, equitable and without bias; and the utilisation of resources in an efficient and effective manner, in order
to create an accountable, transparent, and development­oriented public administration. See the Batho Pele Handbook available on the Department of Public Service
and Administration website http://www.dpsa.gov.za/batho­pele/docs/BP_HB_optimised.pdf accessed 17 August 2009. See also Cloete & Mokgoro (eds) Policies for
Public Service Transformation (Juta, 1995) at 7 ­ 8.
5 8 See S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3) at paras 223 ­ 225; 263 and 307. See especially
para 308 where ubuntu is defined as including the fundamental values of respect, human dignity and conformity with basic norms, with an emphasis on conciliation, as
opposed to confrontation. These are values fundamental in an open democratic society like ours based on equality, human dignity and freedom. See also Dikoko v
Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10) at paras 68 ­ 69 and in particular paras 113 ­ 121.
5 9 See Commissioner, South African Police Service, and Others v Maimela and Another 2003 (5) SA 480 (T) at 480.
6 0 Id.
6 1 Id.
6 2 Id at 481C/D ­ D/E.
6 3 2 of 2000.
6 4 Section 6(2) of PAJA provides:
'(2) A court or tribunal has the power to judicially review an administrative action if ­
(a) the administrator who took it ­
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken ­
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself ­
(i) contravenes a law or is not authorised by the empowering provision; or
(ii) is not rationally connected to ­
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was
purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful.'
6 5 Section 5 of PAJA provides:
'(1) Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90
days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the
administrator concerned furnish written reasons for the action.
(2) The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the
administrative action.
(3) If an administrator fails to furnish adequate reasons for an administrative action, it must, subject to subsection (4) and in the absence of proof to the contrary, be
presumed in any proceedings for judicial review that the administrative action was taken without good reason.
(4)(a) An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and must forthwith
inform the person making the request of such departure.
(b) In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors,
including ­
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of the administrative action concerned;
(iii) the nature and the extent of the departure;
(iv) the relation between the departure and its purpose;
(v) the importance of the purpose of the departure; and
(vi) the need to promote an efficient administration and good governance.
(5) Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different procedure.
(6)(a) In order to promote an efficient administration, the Minister may, at the request of an administrator, by notice in the Gazette publish a list specifying any
administrative action or a group or class of administrative actions in respect of which the administrator concerned will automatically furnish reasons to a person whose
rights are adversely affected by such actions, without such person having to request reasons in terms of this section.
(b) The Minister must, within 14 days after the receipt of a request referred to in paragraph (a) and at the cost of the relevant administrator, publish such list, as
contemplated in that paragraph.'
6 6 Above n28 at para 24.
6 7 Lindela Holding Facility, also known as the Lindela Repatriation Centre, is established in terms of s 34 of the Act. Foreign nationals arrested on immigration charges
are sent to this holding facility which is operated by the private security company Bosasa (Pty) Ltd on behalf of the Department of Home Affairs.
6 8 In support of this submission the amicus curiae cites AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11)
BCLR 1255; [2006] ZACC 9) at para 27.
6 9 See, for example: S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) (2007 (2) SACR 539; 2007 (12) BCLR 1312; [2007] ZACC 18) at paras 6 ­
9, 30 ­ 31, 42, 80, 98, 101 ­ 102 and 108; United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and
Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) 2003 (1) SA 495 (CC) (2002 (11) BCLR 1179; [2002] ZACC 21) at
para 9; Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10)
BCLR 995; [2001] ZACC 22) at para 62; Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169;
[2000] ZACC 19) at para 17; August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) (1999 (4) BCLR 363; [1999] ZACC 3) at paras 12 and 32;
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517; [1998]
ZACC 15) at paras 6, 15 and 58; S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3) at paras 117 and 120.
7 0 Budlender writes that this conception of the amicus curiae under the post­apartheid constitutional order reflects two important changes that have resulted from the
advent of constitutional democracy in South Africa:
'First, it reflects the underlying theme of participatory democracy in the Final Constitution. In matters of broad public interest, such as the interpretation of the Final
Constitution, courts are more disposed towards listening to the voices of persons other than the parties to a particular dispute. Secondly, it reflects the fact that
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the court.'
Budlender 'Amicus Curiae' in Woolman et al Constitutional Law of South Africa 2 ed. Original Service: 07­06 (Cape Town, Juta 2007) at 8­1.
7 1 See Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (2007 (4) BCLR 339; [2006]
 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517; [1998]
ZACC 15) at paras 6, 15 and 58; S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3) at paras 117 and 120.
7 0 Budlender writes that this conception of the amicus curiae under the post­apartheid constitutional order reflects two important changes that have resulted from the
advent of constitutional democracy in South Africa:
'First, it reflects the underlying theme of participatory democracy in the Final Constitution. In matters of broad public interest, such as the interpretation of the Final
Constitution, courts are more disposed towards listening to the voices of persons other than the parties to a particular dispute. Secondly, it reflects the fact that
constitutional litigation often affects a range of people and interests that go well beyond those of the parties already before the court.'
Budlender 'Amicus Curiae' in Woolman et al Constitutional Law of South Africa 2 ed. Original Service: 07­06 (Cape Town, Juta 2007) at 8­1.
7 1 See Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (2007 (4) BCLR 339; [2006]
ZACC 23) at para 83.
7 2 In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023;
[2002] ZACC 13).
7 3 Id at para 5.
7 4 See paras [75] ­ [77] above.
7 5 See Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014) at paras 16 ­ 17; Affordable Medicines Trust and
Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3) at para 138.

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