IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
WYCLIFFE SIMIYU KOYABE and Others v MINISTER OF HOME AFFAIRS and Others
CCT 53/08 Hearing Date: 3 March 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 3 March 2009 the Constitutional Court will hear an application by Wycliffe Simiyu Koyabe and two others for leave to appeal against a judgment of the Pretoria High Court.
The applicants are Kenyan nationals. The first applicant arrived in South Africa in 1994 and was granted a work permit. In 2001 the applicants were found to be in possession of illegal temporary identification documents; and were subsequently arrested for being
‘illegal aliens’. The applicants left South Africa and returned in 2003. In 2005 they successfully applied for permanent residence. In 2007 the applicants were notified that for the purposes of the Immigration Act they were found to be ‘illegal foreigners’ as a result of the fraudulent documents obtained in 2001. Their permanent residency was revoked. The applicants proceeded to challenge this decision in the High Court.
The High Court held that the decision by the Department of Home Affairs declaring that the applicants were illegal foreigners subject to deportation under s.8(1) of the Immigration Act (“the Act”) was not subject to judicial review because they had not exhausted the internal remedies provided for in that Act. The applicants unsuccessfully petitioned the Supreme Court of Appeal
In the High Court, the applicants argued that their internal remedies had not been exhausted because they did not receive reasons for the decision to declare them illegal foreigners. The applicants asked the High Court to set aside the decision to declare them illegal foreigners. In their opposition the respondents contended that the applicants failed to exhaust internal remedies required under s.7(2)(a) of the Promotion of Administration of Justice Act (“PAJA”). They were therefore not entitled to institute judicial review proceedings of the administrative action.
The High Court held that the applicants should first exhaust their internal remedy by requesting a review of the decision before instituting proceedings in a court for judicial review. The High Court held further that it was then for the respondents to determine how they would react to the request for review.
In this Court, the applicants argue that their application for leave to appeal involves questions regarding the ambit of s. 33(2) of the Constitution as given effect to in s.5 of PAJA, both sections of which stipulate that an individual adversely affected by an administrative decision has the right to reasons. It further raises questions about the interpretation of s 7(2) of PAJA especially in light of the right to have disputes resolved in a court under s 34 of the Constitution. The applicants argue that s 7(2) must be interpreted in a manner that limits ss 33 and 34 of the Constitution only to the extent that is required to prevent judicial review from becoming the first port of call. They contend that an individual who makes reasonable efforts to make use of internal remedies should, if these efforts fail, be entitled to judicial review.
The respondents contend that the High Court judgment did not pronounce on the merits of the applicants’ case; it only identified that the applicants had followed the incorrect procedure and directed them to the correct route that they had to follow. The respondents argue that the applicants should not be afforded relief in this Court when they themselves are to blame for not having made use of the appropriate procedures. The applicants are still entitled to apply for condonation for the late filing of their s.8 review, and they may still apply to the Department to have their status as “prohibited persons” lifted. The respondents argue that the application for leave to appeal should be dismissed with costs
Lawyers for Human Rights (“LHR”) have been admitted as an amicus in these
proceedings. They argue that the Department has adopted a specific strategy of arguing the need to exhaust internal remedies whenever they are taken to Court. As a result, the LHR submit that the proper consideration of the relationship between the exhaustion of internal remedies under s 7(2) of PAJA and s 8 of the Act should not occur without an understanding of the practical difficulties involved in making use of the internal remedies under the Act. LHR submits that the right to judicial review should not be denied
individuals in detention even if they have not exhausted their internal remedies.
