KASIYAMHURU v MINISTER OF HOME AFFAIRS AND OTHE... https://0-jutastat-juta-co-za.ultmillen.ul.ac.za/nxt/print.asp?NXTScrip...

Source:
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to
November 2023/1999/Volume 1: 505 - 829 (February)/KASIYAMHURU v MINISTER OF HOME AFFAIRS
AND OTHERS 1999 (1) SA 643 (W)

KASIYAMHURU v MINISTER OF HOME AFFAIRS AND OTHERS 1999 (1) SA 643 (W)
1999 (1) SA p643

Citation 1999 (1) SA 643 (W)

Case No 8743/98

Court Witwatersrand Local Division

Judge Hoffman AJ

Heard May 20, 1998

Judgment May 21, 1998

Counsel CJ Marcus (with him DB Spitz) for the applicant

EM Patel (with him KD Moroka) for the respondents

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Administrative law - Administrative function - Delegation of - Power to withdraw exemption
from provisions of s 23(a) of the Aliens Control Act 96 of 1991 in terms of s 28(4) thereof -
Functionary merely stating that power delegated to C him without submitting acceptable
evidence or documentation to substantiate contention - Express power of delegation to be
interpreted restrictively - Impossible in circumstances to establish satisfactorily and clearly
that valid delegation had taken place.
Immigration - Residence in Republic - Restrictions on - Withdrawal of exemption from
provisions of s 23(a) of the D Aliens Control Act 96 of 1991 in terms of s 28(4) thereof by
functionary in terms of purported delegated powers - Functionary merely stating that power
delegated to him without submitting acceptable evidence or documentation to substantiate
contention - Express power of delegation to be interpreted restrictively - Impossible in
circumstances to E establish satisfactorily and clearly that valid delegation having taken place
- Summary withdrawal of exemption ignoring fundamental right to be heard before making of
decision - Such conduct not justifiable - Applicant's rights by virtue of exemption absolute and
unconditional - Withdrawal of exemption bad in law and indicative of fact that functionary not
applying his mind to matter - Notice withdrawing exemption set aside. F
Practice - Applications and motions - Answering affidavit - Attempt by respondents to have
fourth set of affidavits accepted by Court - Receipt of such affidavits contrary to well-
established principle that normally only three sets of affidavits permitted in motion
proceedings - Fourth set only received in exceptional circumstances - No such G exceptional
circumstances present.
Headnote : Kopnota
The applicant, a Zimbabwean citizen, had been granted exemption from the provisions of s
23(a) of the Aliens Control Act 96 of 1991 ('the Act') (which imposed restrictions on aliens
entering into and residing in the Republic H ). The exemption had been granted in terms of s
28(2) of the Act. It appeared that this exemption had been granted on the basis of a similar
exemption previously granted to the applicant's husband. The Director-General of Home

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Affairs (the second respondent) had subsequently issued a notice withdrawing the applicant's
exemption in terms of s 28(4) of the Act. The stated reason for such withdrawal had been that
according to available records it I appeared that the appellant's husband had in fact not
continuously resided or worked in the Republic for a period of five years and that accordingly
he had not qualified for an exemption. The applicant had been ordered to leave the country by
a given date. The applicant argued that the decision to withdraw her exemption had not been
taken by the first respondent or anyone acting in terms of his lawfully delegated authority
and J

1999 (1) SA p644

was therefore null and void and of no force and effect. She accordingly applied for an order
setting aside the A notice withdrawing her exemption and ordering her departure.
The Chief Director of Legal Advisory Services in the Department of Home Affairs stated in an
affidavit that, once the applicant's husband's exemption had been withdrawn, the applicant's
exemption similarly fell to be B withdrawn. He stated further that the relief sought by the
applicant in the application was premature as she had not approached the first respondent to
review the decision to withdraw the exemption which had been made by him, the Chief
Director, under powers duly delegated to him, and not the second respondent. On the day of
the hearing, the respondents attempted to have a further set of affidavits accepted by the
Court in which they sought C to demonstrate that the powers in terms of s 28(4) had indeed
been delegated and that the Chief Director had been empowered to withdraw the exemption
granted to the applicant.
Held, that the Chief Director had submitted no documentation to substantiate his contention
that the power to D withdraw the exemption had been delegated to him. Furthermore, his
statement that he had decided to withdraw the exemption contradicted the terms of the notice
which stated that the Director-General had taken the decision to withdraw the exemption. (At
649C--D.)
Held, further, that the additional set of affidavits sought to remedy the deficiencies in the Chief
Director's submissions but that to accept such affidavits would fall foul of the well-established
principle that there were E normally three sets of affidavits in motion proceedings. Only in
exceptional circumstances would a fourth set of affidavits be received. As there was no
indication why the information included in the fourth set of affidavits could not have been
included by the respondents in the answering affidavits, as it should have been, there was no
reason in the circumstances to receive the further affidavits. (At 649H--H/I and 650D--E.) F
Held, further, that, even if the additional affidavits had been accepted, there would have been
no acceptable evidence before the Court to indicate that the Chief Director had been one of
the persons to whom powers had been delegated at the time when the exemption had been
withdrawn. Given that the express power of delegation had to be interpreted restrictively, it
was impossible to establish satisfactorily and clearly that a valid delegation had taken place.
(At 651A/B--B/C and 651D.) G
Held, further, that by the summary withdrawal of the exemption the applicant's fundamental
right to be heard before a decision was taken had been ignored. There was no basis on which
such conduct could be justified. It was also incorrect to suggest that the applicant's rights by
virtue of the exemption piggy-backed upon those of her H husband. Her rights were absolute
and unconditional and the decision of the Chief Director to withdraw her exemption on the
basis that her husband's exemption had been withdrawn was bad in law and indicative of the
fact that the Chief Director had not applied his mind to the matter. (At 651G/H--I/J.)
Application granted.
Cases Considered
Annotations I

Reported cases
Chairman, Board on Tariffs and Trades and Others v Teltron (Pty) Ltd 1997 (2) SA 25 (A):
applied
SA Airways Pilots Association and Others v Minister of Transport Affairs and Another 1988 (1)
SA 362 (W): applied J

1999 (1) SA p645

HOFFMAN AJ

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Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W): dictum at 604A--E
applied. A
Statutes Considered
Statutes
The Aliens Control Act 96 of 1991, ss 23(a), 28(2), 28(4): see Juta's Statutes of South Africa
1997 vol 5 at 2-10, 2-14 and 2-17.
Case Information
Application for an order setting aside an administrative decision. The facts appear from the
reasons for judgment.
G J Marcus SC (with him D B Spitz) for the applicant.
E M Patel SC (with him K D Moroka) for the respondents.
Cur adv vult.
Postea (May 21). C

Judgment
Hoffman AJ: The applicant, a citizen of Zimbabwe, was with effect from 25 March 1997
granted an exemption in terms of s 28(2) of the Aliens Control Act 96 of 1991 from the
provisions of s 23(a) of that Act. The relevant sections read: D
'23 Restriction on entering into and residence in the Republic
Subject to the provisions of ss 28 and 29, no alien shall -
(a) enter or sojourn in the Republic with a view to permanent residence therein, unless he or she is in
possession of an immigration permit issued to him or her in terms of s 25; or
(b) ... E
....
28 Exemptions
...
(2) Notwithstanding the provisions of this Act, the Minister may, if he or she is satisfied that there are special
circumstances which justify his or her decision, exempt any person or category of persons from the provisions
of s 23, F and for a specified or unspecified period and subject to such conditions as the Minister impose, and
may do so also with retrospective effect.'

The exemption concerned, to which I shall refer as the 'exemption', reads as follows:
'It is hereby certified that the person whose particulars appear below has, in terms of s 28(2) of the Aliens
Control Act 96 G of 1991 been exempted unconditionally and for an unspecified period from the provisions of s
23(a) of the said Act with effect from the date of issue of the certificate and thereby acquired a right of
permanent residence from this date.'

It appears that the exemption was granted on the basis of a similar exemption previously
granted to the applicant's husband, one Kanhema. However nothing turns on this save in
regard to matters to which I shall refer in brief H below.
The Minister of Home Affairs, the first respondent, is empowered to withdraw an exemption
granted in terms of s 28 of the Act. He is furthermore empowered to delegate that power. The
relevant sections of the Act are 28(4) I and 4 respectively. They read as follows:
'28(4) The Minister may withdraw any exemption granted under ss (2) to any category of persons or to any
person, and, in the case of a person, whether he was exempted as an individual or as a member of a category
of persons.'
'4(1) The Minister may, subject to such conditions as he or she may deem necessary, delegate any power
conferred on him or her by this Act, excluding the J

1999 (1) SA p646

HOFFMAN AJ
power referred to in ss 24, 47 and 50 to the extent to which it applies to s 47, and 56, to an officer or
employee in the A public service, but shall not be divested of any power so delegated and may set aside or
amend any decision of the delegate named in the exercise of such power.'

On 14 January 1998 the Director-General of Home Affairs, the second respondent, issued a
notice, to which I B shall refer as 'the first notice', purporting to withdraw the exemption. That
notice, which was served on the applicant on 21 January 1998, reads:
'Notification of withdrawal of exemption.
This is to notify that the Director-General: Home Affairs, duly delegated by the Minister of Home Affairs to
perform the functions provided for in s 28 of the Aliens Control Act 96 of 1991 has after careful consideration
withdrawn in terms of s C 28(4) of the said Act the exemption from the requirements to be in possession of a
permit for permanent residence granted to you on 25 March 1997 with effect from 30 April 1997.

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The reason for the decision is that according to available records your husband did not continuously reside or
work in the Republic for a period of five years on or before 30 June 1991 and he consequently did not qualify
for the exemption, D a fact that he deliberately and knowingly ignored. Proof hereof is contained in the
highlighted parts of the attached documentation. You are hereby ordered to leave the country within 21 days
from date of this notice.
...
You are hereby required to furnish this office the full particulars of the date of the intended departure which
must be at least three days before that date.' E

The applicant immediately upon receipt of this letter engaged the services of her present
attorneys of record. They took up the cudgels on her behalf and made strenuous efforts to
secure the withdrawal of the first notice. They were successful only to this extent: On 2
February 1998 a second notification, which superseded the first, and to F which I shall refer as
'the second notice', was served upon the applicant once again informing her of the withdrawal
of the exemption. This document is couched in terms virtually identical to the first notice, save
only that the section dealing with the reasons for the withdrawal contains amended dates.
That section reads: G
'The reason for the decision is that according to available records your husband did not reside or work in this
country for a continuous period of five years prior to 1 July 1996 and he consequently did not qualify for the
exemption, a fact that he deliberately and knowingly ignored. Proof hereof is contained in the highlighted parts
of the attached documentation.'

In addition, the date by which the applicant was to leave South Africa was amended and the
relevant part of the H notice reads:
'You are hereby ordered to leave the country on or before 11 February 1998.'

The second notice led to further correspondence between the attorneys acting on behalf of the
applicant and the Department of Home Affairs and a meeting was held between a member of
the Department of Home Affairs, a I certain Mr Tredoux, to whom I shall refer more fully
below, and representatives of the applicant's firm of attorneys. The applicant's attorneys were
not able to persuade the Department of Home Affairs that the decision to withdraw the
exemption should be revoked and accordingly the present proceedings were launched to set
aside the first and second notices and to claim further relief by way of interdict. J

1999 (1) SA p647

HOFFMAN AJ
The proceedings are in the nature of a review. As Mr Marcus pointed out in argument, had the
matter not been A urgent (I pause to observe that it is urgent in view of the deadline imposed
upon the applicant to leave South Africa), the provisions of Rule 53 of the Uniform Rules of
Court would have been utilised and the applicant would have been able to call for all
documentation upon which the decision was taken. In the event this was not possible B and
accordingly the applicant, in her founding papers, called upon the respondents to produce
various documents. Relevant to this judgment is what is stated in para 20 of her affidavit. It is
necessary to cite that paragraph in full:
'Neither of the decisions were taken by the first respondent or anybody acting in terms of his lawfully
delegated authority. C I draw this inference from the fact that the first notification (annexure 'JCK6') purports
to have been issued by the second respondent acting under the delegated authority of the first respondent.
That letter is signed by the third respondent. The letter informing me of the withdrawal of my exemption and
ordering me to leave South Africa (annexure 'JCK11') purports to reflect a decision 'by the Department'. By
reason of the urgency of this matter and notwithstanding D demand, my attorneys have not been furnished
with information concerning the two decisions and which would reflect who in fact took the two decisions. I
have been advised and I respectfully submit that the power to withdraw an exemption vests in the first
respondent alone and may not be lawfully delegated; alternatively, if such power can be delegated it has not in
fact been delegated. If there has indeed been a lawful delegation of the power to take the two E decisions, the
respondents are invited to furnish proof thereof, failing which it will be argued on my behalf that there has
been no lawful delegation and that the two decisions are, for this reason alone, null and void and of no force or
effect in law.'

The respondents in due course filed their answer. The main affidavit is deposed to by Adriaan
Francois Tredoux, the Chief Director, Legal Advisory Services in the Department of Home
Affairs. There are confirmatory F affidavits by the first, second and third respondents.
Mr Tredoux states in his affidavit that he had reason to suspect that the applicant's husband's
exemption in terms of s 28(2) of the Act was procured fraudulently. He avers that for this
reason he decided to withdraw that G exemption and that of the applicant and that he did so
on 23 October 1997 in terms of a document which he appends to his affidavit. That document
reads:
'Withdrawal of exemption.
By virtue of the delegated power vested in me in terms of s 28(4) of the Aliens Control Act 96 of 1991, I
hereby withdraw the exemptions granted on 2 December 1996 and 30 April 1997, respectively, for the

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following persons, with imme- H diate effect:

Newton Kanhema, born 11 September 1964
Jean Chenai Kasiyamhuru, born 24 July 1971.'

The document is signed I

'A F Tredoux
pp Director-General'

and dated 23 October 1997.

A moment's reflection reveals that that document evidencing the withdrawal is confused and
inadequate. It refers to delegated powers vested in terms of s 28(4). Powers are delegated in
terms of s 4 and not J

1999 (1) SA p648

HOFFMAN AJ
s 28 and the document is in error in this regard. Secondly, the document is signed by Mr
Tredoux, pp A Director-General, notwithstanding the fact that he appears to have taken the
decision. A little bit more about this later.
The reasoning in Mr Tredoux's affidavit is that once the applicant's husband's exemption fell to
be withdrawn and B was withdrawn, ipso facto the applicant's exemption also fell to be
withdrawn and it was in these circumstances that he acted as he did. I refrain from
commenting in detail on the validity of his reasoning as it is unnecessary. I will however have
a brief word to say about it towards the end of this judgment.
In particular, Mr Tredoux states in para 5 of his affidavit: C

'At the outset of these proceedings, I, on behalf of the respondents, assert that the relief sought by the
applicant is premature because she has not approached the first respondent to review, in terms of s 4(3)(a) of
the Aliens Control Act 96 of 1991, the decision by me withdrawing her exemption to remain in the Republic of
South Africa.'

He says further in para 7: D

'Therefore, it is further submitted that the relief which the applicant is seeking in the present proceedings is
not competent until such time as the first respondent has had an opportunity to review the decision
withdrawing her exemption, which decision was made by me and not the second respondent.'

And in para 24.8, in response to para 20 of the founding affidavit which I have quoted above,
Mr Tredoux says the E following:
'It is submitted that Kanhema procured his exemption for permanent residency by falsely declaring that he
had entered the country in 1990. This false declaration was made with the intention to induce an official or
officials to grant him an exemption by indicating that he had been in the country since September 1990 and
qualified for exemption. Upon having F checked the documents that he obtained his exemption by making a
false declaration I was satisfied that Kanhema was not qualified to have been granted an exemption. And since
the applicant was granted an exemption by being the spouse of Kanhema, she should not have been granted
an exemption. I was satisfied that she too was not entitled to an exemption. Accordingly, by virtue of the
delegated power vested in me in terms of s 28(4), I withdrew the exemptions G granted to Kanhema on 2
December 1996 and to the applicant on 30 April 1997. This was done by me on 23 October 1997. A copy of the
withdrawal of exemption is annexure ''AT24''.'

The document 'AT24' is the one I quoted earlier. I point out that once again there was a
confusion as to precisely which of the sections of the Act permitted the delegation of powers.
H

It can thus be observed that the response to para 20 of the founding affidavit, far from
substantiating the delegation to him of the Minister's powers in terms of s 28(4), is merely a
statement by Mr Tredoux that this is the case. He also states the following in para 46 of his
affidavit:
'46.1 I reiterate that there was a single decision taken by me in terms of a lawful delegated authority. This is
dealt with above. I
46.2 The third respondent was the lawful delegated authority to notify the applicant of the withdrawal of the
exemption.'

The response is nothing short of startling. In his affidavit, despite being invited and indeed
being enjoined to produce proof of delegation of authority, Mr Tredoux contents himself with
his mere say-so that he was so delegated J .

1999 (1) SA p649

HOFFMAN AJ
This is to be contrasted with further averments in the affidavit and what he himself appends to
that affidavit. He A states that the power to grant the exemption was exercised by a person

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who had been delegated with the power so to act. He appends as 'AT6' the document
evidencing such delegation. The document is a detailed one and is headed 'Delegation of the
power of exemption in terms of s 28(2) of the Aliens Control Act 96 of 1991 as B amended'. It
goes on to contain details of the delegation concerned and the officials to whom powers are
delegated. They are specifically mentioned in the document which is, as I have said, a detailed
one. No doubt, had a similar document been appended to the answer concerning the
delegation of the power to withdraw exemptions, C the point with which I am concerned would
not have been argued. In the event I repeat that Mr Tredoux (a) contents himself with merely
saying that the withdrawal of the exemption was a decision under powers delegated to him,
yet he produces not a single document in support of that contention; (b) contradicts the terms
of the first and second notices which state unequivocally that the Director General: Home
Affairs took the decision to withdraw the exemption. D
Against that background it is not surprising that the applicant in limine has argued that the
first and second notices are nullities and void. Indeed, Mr Patel conceded, as he was bound to
do, that on the papers as they exist the applicant's argument must succeed. He sought,
however, to counter it by attempting to persuade me to receive a E document styled 'first and
second respondent's supplementary affidavits' which was served on 19 May 1998 and handed
to me yesterday, the morning of 20 May 1998. These are affidavits deposed to by the Minister
and the Director-General and in them it is sought to demonstrate that the powers in terms of
s 28(4) were indeed delegated and that Mr Tredoux was competent to withdraw the exemption
granted to the applicant. F
Remarkably, however, there is no explanation by either the first or second respondents for the
failure to make these averments now sought to be introduced in the answer filed of record.
Furthermore, there is no application for leave to file a fourth set of affidavits and no affidavit
explaining the circumstances under which that leave is G sought. Mr Marcus objected to the
attempt to persuade me to receive the further affidavits and has argued that I should not do
so. He points out that it is not a matter of right for the respondents to hand further affidavits
to me and that they seek an indulgence. They have laid no basis, he argues, for this
indulgence being granted. I was H referred to the well-established principle that in motion
proceedings there are normally three sets of affidavits. It is only in exceptional circumstances
that a fourth set will be received. Mr Marcus in particular referred me to the well-known case
of Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) where Williamson
J, as he then was, said at 604A--E: I
'It was contended in argument that I really had no discretion on the question of the admission of these
further affidavits because authority had decided that a further set of affidavits can only be admitted, firstly, if
they are necessary to answer new matter raised in the applicant's affidavits, or, secondly, if the information or
evidence was not available to the respondent when the first set of affidavits was filed. No new matter was
raised in the answering affidavits of the J

1999 (1) SA p650

HOFFMAN AJ
applicant nor was it sought to answer only alleged new matter. Secondly, it was contended, the information
or evidence A was at all times available to the respondent in its records. The fact that it was not present to the
minds of or known to the officials presently dealing with the matter, did not constitute a compliance with the
second or alternative requirement to be satisfied before fresh affidavits could be filed. In my view the
authorities do not restrict the discretion of the Court in B the manner suggested. I think that if there is an
explanation which negatives mala fides or culpable remissness as the cause of the facts or information not
being put before the Court at an earlier stage, the Court should incline towards allowing the affidavits to be
filed. As in the analogous cases of the late amendment of pleadings or the leading of further evidence in a trial,
the Court tends to that course which will allow a party to put his full case before the Court. But there C must
be a proper and satisfactory explanation as to why it was not done earlier, and, what is also important, the
Court must be satisfied that no prejudice is caused to the opposite party which cannot be remedied by an
appropriate order as to costs.'

I can only echo and reiterate those sentiments. They are of equal application in this case. As I
have said, there D was not a tittle of evidence before me as to why the information now
sought to be introduced was not put into the answering affidavits. It clearly was at all times
available to the respondents.
In the circumstances there is no basis upon which I am prepared to consider receiving the
further affidavits and I E decline to do so. That is really the end of the matter.
For the sake of completeness, however, it is appropriate that I should go a little bit further.
There is another reason why I decline to receive the supplementary affidavits; they take the
matter no further and indeed make the confusion even more confounded. More particularly:
1. The Minister in his supporting affidavit states that on 17 February 1997 he approved the
delegation of his F powers in terms of the Act to certain officials in his department. He

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says in the supplementary affidavit the following:

'On 17 February 1997 I approved delegations applicable to the Aliens Control Act 96 of 1991. A copy of the
approval is G annexed hereto as annexure ''MB1''. An extract from the document which contains the delegated
functions approved by me is annexed hereto as annexure ''MB2''.'
Annexure 'MB1' is merely a recommendation to the Minister to 'submit the new delegations
application to the amended Aliens Control Act 1991 for approval'. A recommendation is
specifically made that 'you H approve the delegations as set out in annexure A'. It is
evident from this document that the Minister did so approve the delegation of powers on
17 February 1997. However, annexure 'MB2', of which I received a full and legible copy
only this morning, reads:
'Department of Home Affairs: Delegations of . . . . Directorate Migration as on 31 December 1996.' I
On the face of it this document refers to delegated powers which were in place as at 31
December 1996 and not to powers which were delegated during February 1997. Mr Patel
sought to argue that the document is indeed annexure A. This does not however appear
ex J

1999 (1) SA p651

HOFFMAN AJ
facie the document itself and I would have expected at the very least an explanation on
oath for the heading A of the document which I have quoted above. In the
circumstances I was left in an area of uncertainty as to whether the document 'MB2' is
indeed the annexure A referred to in the document 'MB1' and I simply do not have
acceptable evidence before me, even if I were to receive the affidavit, that Mr Tredoux
was at the B relevant date one of the persons to whom powers had been delegated in
terms of s 4 of the Act.
2. Neither the Minister nor Mr Tredoux state that on 14 January 1998 or 2 February 1998
(the dates of the two notices), or indeed on 23 October 1997 when Mr Tredoux took his
decision, that he occupied the position C which he now does or indeed that he was then
one of the designated delegates. Accordingly, even if I accept that the Minister's powers
were validly delegated I cannot say that Mr Tredoux was a competent delegatee of those
powers.
The fact of a valid delegation must clearly and satisfactorily be established and an express
power of D delegation must be interpreted restrictively. This is clear from the cases cited
to me by Mr Marcus in his argument and in particular from the cases of the SA Airways
Pilots Association and Others v Minister of Transport Affairs and Another 1988 (1) SA
362 (W) and Chairman, Board on Tariffs and Trades and Others v Teltron (Pty) Ltd 1997
(2) SA 25 (A). E
3. There is still no explanation for the fact that the first and second notices purport to reflect
a decision by the Director-General: Home Affairs, yet Mr Tredoux says that the decision
to withdraw the exemption was his.
Mr Marcus also referred me to the provisions of our Constitution (the Constitution of the
Republic of South Africa F Act 108 of 1996) and submitted that the applicant's rights as
enshrined therein, and in particular in the Bill of Rights, have been violated. Attractive though
this argument is, it is not necessary for me to consider it in view of the conclusion to which I
have come based on the common law.
Finally, I would like to make two further brief observations. Firstly, it seems to me that even
had I been called G upon to decide the case on its merits, I would have concluded that the
decision was bad. The fundamental right which the applicant had to be heard before a decision
was taken was ignored. She was simply presented with a fait accompli. I can perceive of no
basis upon which this conduct can be justified. H
Secondly, it is my view that it is fundamentally fallacious to suggest that the applicant's right
to residence by virtue of the exemption piggy- backs upon that of her husband, Mr Kanhema.
It is in its terms an exemption which is absolute and unconditional. It is accordingly my prima
facie view that the decision taken by Mr Tredoux, which on I his own say-so was one taken
merely on the basis that Mr Kanhema's residence was withdrawn is bad in law. In these
circumstances it seems to me that Mr Tredoux did not apply his mind properly to the question
of the applicant's status and on that basis, too, his decision is bad in law.
In the circumstances there will be an order in terms of prayers 2, 3 and 5 of the notice of
motion, that is: J

1999 (1) SA p652

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1. An order setting aside the first and second notices withdrawing the applicant's exemption
to remain in South A Africa and directing the applicant's departure from the Republic of
South Africa.
2. An order interdicting the respondents from giving effect to or enforcing the applicant's
deportation.
3. The respondents jointly and severally are to pay the applicant's costs of suit including
costs attended upon B the employment of two counsel.
Applicant's Attorneys: Webber Wentzel Bowens. Respondents' Attorneys: State Attorney.

© 2018 Juta and Company (Pty) Ltd.

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