In a recent judgment, the Cape Town High Court considered an application instituted by Samson Ngiriyabandi ("Mr Ngiriyabandi") against the Border Management Authority Of South Africa ("the BMA"), The Minister of Home Affairs ("the Minister") and The Department Of Home Affairs ("the Department"). Mr Ngiriyabandi instituted the application after BMA refused him entry into South Africa on 28 January 2025 at Cape Town International Airport.
The basis for the refusal was a condition on his visitor's visa, which indicated that he must report to the port of entry on or before 26 January 2025. The immigration officer refused Mr Ngiriyabandi entry on the basis that his visa had expired 2 days ago.
On 26 January 2025, Mr Ngiriyabandi lodged an appeal in terms of section 8(1) of the Immigration Act, 2002 ("Immigration Act") against the decision refusing him entry. On 31 January 2025, Mr Wesley Fester, a representative of the BMA, requested further documentation from Mr Ngiriyabandi's attorneys in respect of the appeal.
However, whilst the appeal was still pending, Mr Ngiriyabandi approached the High Court for urgent relief on 31 January 2025 and without notifying any of the respondents. In the High Court Mr Ngiriyabandi sought a rule nisi whereby on the return date of 18 February 2025, the respondents would be required to show why the BMA's decision, taken on 28 January 2025, to refuse Mr Ngiriyabandi entry into the republic should not be set aside and why Mr Ngiriyabandi should not be allowed to enter and remain in South Africa on his visitor's visa until 20 March 2025. The rule nisi was granted.
The respondents opposed Mr Ngiriyabandi's application to make the rule nisi a final order. The matter was eventually heard on 19 February 2025. The respondents argued that the relief that Mr Ngiriyabandi sought was a final interdict setting aside the decision to refuse him entry, but Mr Ngiriyabandi had failed to institute any review proceedings.
In addition, the respondents argued that Mr Ngiriyabandi was seeking an interdict to set aside an administrative decision, when the decision should have been challenged by way of review. The respondents also argued that based on the Oudekraal principle, an administrative action has legal consequences until and unless it is set aside by a court of competent jurisdiction. This much was conceded by Mr Ngiriyabandi's counsel.
The High Court remarked that Mr Ngiriyabandi not only sought to set aside the decision of the BMA but also sought a substitution order. This relief could only be granted in exceptional circumstances. The Court found that Mr Ngiriyabandi, in his application, had not pleaded any grounds for review nor any exceptional circumstances that warranted a substitution order.
Lastly, the High Court referred to Mr Ngiriyabandi's appeal in terms of section 8 (1) of the Immigration Act, which he omitted to mention in his application papers. The High Court found that Mr Ngiriyabandi had created the impression to the judge in urgent court that he had no other satisfactory remedy, which was clearly misleading.
Consequently, the application was dismissed with costs.
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