THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 13/2016
In the matter between:

MINISTER OF HOME AFFAIRS                                                       FIRST APPELLANT
DIRECTOR-GENERAL OF HOME AFFAIRS                              SECOND APPELLANT
and
FIREBLADE AVIATION PROPRIETARY LIMITED                      FIRST RESPONDENT
SOUTH AFRICAN REVENUE SERVICE                                 SECOND RESPONDENT
DENEL SOC LIMITED                                                                  THIRD RESPONDENT

Neutral citation:
Minister of Home Affairs & another v Fireblade Aviation Ltd &
others (13/2016) [2018] ZASCA 46 (28 March 2018)

Coram:
Wallis JA and Hughes AJA

Heard:
No hearing.

Delivered:
28 March 2018

Summary: Application for leave to appeal against judgment in High Court in application
proceedings – such to be dealt with under s 16(1)(a)(i) of the Superior Courts Act 10 of

2013 (the Act)– the fact that the High Court had granted an enforcement order in terms
of s 18(1) of the Act and that order has been upheld by the Full Court in an appeal
under s 18(4) does not make the application one for special leave to appeal in terms of
s 16(1)(b) of the Act – no reasonable prospects of success on appeal – application for
leave to appeal dismissed.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Potterill J sitting as court
of first instance:
Leave to appeal is refused with costs.
______________________________________________________________________

JUDGMENT
______________________________________________________________________
WALLIS JA (Hughes AJA concurring)

[1] When this application for leave to appeal was placed before us in terms of
ss 17(2)(b) and (c) of the Superior Courts Act 10 of 2013 (the Act) the parties were at
one in saying that it was an application for special leave to appeal in terms of s 16(1)(b)
of the Act. We queried that by way of a letter addressed by the registrar to the parties’
attorneys. In reply, the attorney for the applicants accepted that it was in fact an
application for leave to appeal in terms of s 16(1)(a)(i) of the Act. The attorneys for the
first respondent (Fireblade) persisted in submitting that it was an application for special
leave to appeal, or alternatively was one that was closely akin to an application for
special leave. They contended that this latter meant that it is relevant to the
determination of the application that two courts have carefully considered and dismissed
the merits of the matter. Hence the need for this short judgment.

[2] Fireblade brought application proceedings before the Gauteng Division of the
High Court, Pretoria, seeking an order that the First Applicant, the Minister of Home
Affairs (the Minister), had granted its application for approval of an ad hoc international
customs and immigration component of a corporate fixed base aviation operation to be
conducted by officials of the Border Control Operational Co-ordinating Committee at
premises it had established within the precincts of O R Tambo International Airport.

Despite the opposition of the Minister the application succeeded before Potterill J and
an order was granted on 27 October 2017.

[3] An application for leave to appeal was heard on 1 December 2017 and dismissed
on 8 December 2017. On the same day Potterill J granted an order in terms of s 18(1)
of the Act that the operation of her earlier order was not suspended pending the
determination of the application for leave to appeal ‘as well as any subsequent
applications for leave to appeal that may be delivered by any of the other respondents
as well as any other appeal’. This order was the subject of an urgent appeal to the full
court in terms of s 18(4) of the Act. That appeal was dismissed on 14 December 2017.

[4] The reason the parties thought that this application for leave to appeal against
Potterill J’s original judgment was an application for special leave to appeal was the
following. Potterill J had dealt with the merits of the case initially and also when refusing
leave to appeal and granting the enforcement order. Her reasoning was scrutinised and
endorsed by the full court when hearing the s 18(4) appeal. Accordingly, so the parties
reasoned, and the respondent continues to reason, two courts have considered the
merits and an appeal to this court is therefore one that requires special leave to appeal.

[5] If incorrect this needed to be corrected because it affects the test to be applied
by this Court in determining the application for leave to appeal. It is incorrect because
the application before us is not an application to appeal against the decision of the full
court, but an application to appeal against the original judgment of Potterill J. As such it
is an application for leave to appeal against a decision of a single judge and falls under
s 16(1)(a)(i) of the Act. The test to be applied in terms of s 17(1) of the Act is therefore
whether the appeal would have reasonable prospects of success or whether there is
some other compelling reason why an appeal should be heard.

[6] We are satisfied that neither of these tests is satisfied in this case. Potterill J’s
grant of an order in favour of Fireblade was based upon two documents in which it was
recorded clearly and contemporaneously that on 28 January 2016 the Minister had

granted the approval sought and signed a letter to that effect to be forwarded to
Fireblade. The accuracy of these documents, one of which was a letter addressed
personally to the Minister, was not challenged at the time. Instead, when the third
respondent raised an issue, the Minister in his own handwriting noted that Fireblade be
informed that ‘the approval we granted them is also suspended’. The underlining was
his. His subsequent attempts to explain that he had not granted Fireblade the approval
it sought, but merely indicated that ‘the major stakeholders have indicated that the
project can go ahead’ were inconsistent with these documents and we cannot fault the
judge’s rejection of them, subsequently endorsed by the full court.1

[7] The other grounds advanced in support of the application for leave to appeal can
be disposed of shortly. The first was a contention that Fireblade applied for the
designation of its facility as a port of entry. That was rightly rejected on the basis of the
Minister’s own letter saying that the application did not involve the declaration of the
facility as a new port of entry. That was followed by a letter from Fireblade correcting the
nature of its application to one for ad hoc facilities within an existing port of entry viz O R
Tambo International Airport.

[8] The second additional ground in support of the application was a contention that
a decision by the Minister on 27 October 2017 to reject Fireblade’s application stood
until it had been set aside. Here the Minister is hoist by his own petard. The rejection of
his version of the events on 28 January 2016 led inexorably to the conclusion that
Fireblade’s application had been approved. He was therefore bound by that decision
unless and until a court set it aside and yet he brought no application to set it aside.2 It
therefore stood and was affirmed by the judgment of the high court. As the high court
pointed out in its judgment this rendered redundant the precautionary application by the

1 See Da Mata v Otto 1972 (3) SA 858 (A) and Platinum Holdings (Pty) Ltd v Victoria and Alfred
Waterfront (Pty) Ltd (2004) 8 CLR 231 (SCA) paras 14 and 15 for cases in which the inability to provide
any convincing explanation of contemporaneous documents led the court to reject evidence as untenable
without the need for oral evidence.
2 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute
2014 (3) SA 481 (CC) paras 101-103; Department of Transport and Others v Tasima (Pty) Ltd [2016]
ZACC 39; 2017 (2) SA 622 (CC) paras 141-150.

first respondent to review and set aside that decision. The Minister cannot rely on his
own unlawful attempt to circumvent the decision he had lawfully made to grant
Fireblade’s application.

[9] The last contention in support of the application was that in granting the
application the Minister acted contrary to s 217 of the Constitution dealing with the
procurement by an organ of state of goods and services. But the grant of the application
did not involve an organ of state in procuring goods or services from Fireblade. It was
itself discharging its own statutory functions in regard to immigration control and
customs at an existing port of entry, to wit, O R Tambo International Airport. The fact
that for a provisional period Fireblade was to bear the cost of its doing so cannot alter
that fact.

[10] One further point that the applicants raise was the failure of the high court to deal
with a counter-application seeking declaratory relief in relation to the proper
interpretation of s 9A of the Immigration Act 13 of 2002 in respect of the Minister’s
powers to designate a place as a port of entry. This was clearly related to the issue
dealt with in para 7 of this judgment and for the reasons set out there this was not an
issue in dispute between the parties. It was accordingly not apt for determination in
proceedings between Fireblade and the Minister. In any event we do not think the
arguments put forward have any reasonable prospects of success.

[11] We are accordingly of the opinion that an appeal against Potterill J’s judgment
has no reasonable prospect of success. There is nothing to suggest that the issues
raised by the Minister are of such a nature as to warrant the grant of leave to appeal
notwithstanding the lack of prospects of success.

[12] The application for leave to appeal is dismissed with costs.
_______________________
M J D WALLIS
JUDGE OF APPEAL

Appearances:

Applicants: State Attorney,

Pretoria and Bloemfontein

First Respondents: Werksmans Attorneys, Johannesburg;

Symington & De Kok, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
28 March 2018
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
Minister of Home Affairs v Fireblade Aviation Ltd [2018] ZASCA
46.

The SCA today dismissed an application for leave to appeal by the
Minister of Home Affairs against a judgment of the Gauteng Division of
the High Court, Pretoria. The case concerned the approval by the
Minister, at that time Mr Malusi Gigaba, of Fireblade Aviation’s
application for approval of an ad hoc international customs and
immigration component of a corporate fixed base aviation operation to be
conducted by officials of the Border Control Operational Co-ordinating
Committee at premises it had established within the precincts of O R
Tambo International Airport.
There was a dispute between the parties as to the proper test to be
applied in determining the application. This dispute was the reason for
the court departing from its usual practice of not furnishing detailed
reasons when dealing with applications for leave to appeal. The SCA
rejected a contention by Fireblade Aviation that the application was one
for special leave to appeal, where the test for granting leave is more
stringent, and held that what was required was for the applicant to show

that it had reasonable prospects of success on appeal, or that some other
compelling reason warranted the grant of leave to appeal.
Applying this less stringent test the court held that there were no
reasonable prospects of success on appeal. The issue was whether the
Minister had approved the application and conveyed that approval to
Fireblade Aviation at a meeting on 28 January 2016, but had thereafter
sought to suspend and withdraw that approval. The High Court held that
he had approved the application and that his denial that he had doe so
could not be accepted. The SCA held that there was no reasonable
prospect of the High Court’s rejection of the Minister’s evidence being
overturned on appeal. It rejected the contention that Fireblade Aviation
was seeking approval for a new port of entry into South Africa as that
was inconsistent with a letter from the Minister saying that the
application did not involve establishing a new port of entry. It also held
that the Minister could not rely on his purported withdrawal of consent to
the application as that was inconsistent with his prior approval of it.
There was no compelling reason to grant leave to appeal. The
application for leave to appeal was dismissed with costs.