THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 242/12
Not Reportable

In the matter between:

PRINCE MANGOSUTHU GATSHA
BUTHELEZI
First Appellant
MOSIUOA LEKOTA
Second Appellant

and

MINISTER OF HOME AFFAIRS
First Respondent
DIRECTOR-GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS
Second Respondent
MINISTER OF INTERNATIONAL
RELATIONS AND COOPERATION
Third Respondent
DIRECTOR-GENERAL OF THE
DEPARTMENT OF INTERNATIONAL
RELATIONS AND COOPERATION
Fourth Respondent

Neutral citation: Buthelezi & another v Minister of Home Affairs &
others (242/12) [2012] ZASCA 174 (29 November
2012)
Coram:
NUGENT, HEHER, TSHIQI and WALLIS JJA and
MBHA AJA
Heard:
12 NOVEMBER 2012
Delivered:
29 NOVEMBER 2012
Summary:
Immigration Act 13 of 2002 – visas – whether
Minister obliged to grant – whether unreasonable
delay in this case.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from Western Cape High Court, Cape Town (Baartman
Madam J sitting as court of first instance).

The appeal is upheld with costs that include the costs of two counsel. The
order of the court below is set aside and substituted with the following:

1.
It is declared that the First Respondent unreasonably delayed her
decision whether to grant or withhold the visas relevant to this case
and in so doing acted unlawfully.
2.
The respondents are to pay the costs of the applicants, including
the costs of two counsel.
___________________________________________________________

JUDGMENT
___________________________________________________________

NUGENT JA (HEHER, TSHIQI and WALLIS JJA and MBHA AJ
CONCURRING)

[1] The 14th Dalai Lama – spiritual leader of the Gelug school of
Tibetan Buddhism, former leader of the government-in-exile of the
people of Tibet after its annexation by the People’s Republic of China,
and an iconic proponent of world peace – has on two occasions in recent
times been invited to visit this country. On both occasions the visit had to
be cancelled because visas for him and members of his entourage were
not timeously forthcoming.  This appeal relates to the second occasion on

which that occurred. On that occasion he had been invited by the Gandhi
Development Trust, various other institutions, and Nobel Laureate
Archbishop Tutu. The visit was to be from 7 to 13 October 2011. By 4
October 2011 there had been no response to applications that had been
made for visas and the proposed visit was cancelled.

[2] The appellants are both Members of the House of Assembly. They
allege that the visa applications were dealt with unlawfully. They wish
once again to invite the Dalai Lama to visit this country but say that he
cannot be expected to accept without being assured that what had
occurred before had been unlawful and should not be expected to recur.
To that end they applied to the Western Cape High Court for various
forms of declaratory relief. The respondents were the Minister of Home
Affairs, the Minister of International Relations and Cooperation, and the
Directors-General of those departments. The application was refused by
Baartman and Davis JJ and the appellants now appeal with the leave of
that court.

[3] Courts will generally decline to entertain litigation in which there
is no live or existing controversy. That is principally for the benefit of the
court so as to avoid it being called to pronounce upon abstract
propositions of law that would amount to no more than advisory opinions.
The principle so far as appeals are concerned is captured in s 21A of the
Supreme Court Act 59 of 1959, which allows an appeal to be dismissed
on the grounds alone that the judgment or order sought will have no
practical effect or result.

[4] The application was dismissed by the court below on the grounds
that there was no live controversy. That was rightly not pressed in

argument before us. Whether the authorities had acted lawfully was and
remains a live issue. That they would not be called upon to reconsider
their conduct if they had acted unlawfully goes only to whether a decision
on that question would have practical effect. In view of the appellants’
intentions it cannot be said that it will not.

[5] It is not necessary to relate the relief that was sought in the court
below. Before us counsel for the appellants confined himself to three
declarations, each of which was sought as an alternative to the one
preceding it. First, they asked us to declare that the respondents had been
obliged to issue a visa. Secondly, to declare that visas had been refused.
And thirdly, to declare that the ‘conduct’ of the respondents was
unlawful. When probed on what ‘conduct’ specifically was said to have
been unlawful counsel could offer no more than that the Minister of
Home Affairs had unreasonably delayed her decision, and I have
approached the matter on that basis.

[6] The claim to the first declaration can be disposed of briefly. That
claim was founded upon a construction placed by the appellants on s 10A
of the Immigration Act 13 of 2002, read with ss 29 and 30.

[7] Subsection (1) of s 10A requires any foreigner who enters the
Republic to produce to an immigration officer, on demand, a valid visa
granted under subsection (3). That subsection provides that a visa
‘(a) may, subject to any condition that the Minister [of Home Affairs] may deem fit,
be granted by the Minister to any person who is not exempt … from the requirement
of having to be in possession of a valid visa, and who has applied for such a visa in
the prescribed manner and on the prescribed form’.

[8] Section 29 identifies certain foreigners as ‘prohibited persons’.
They include persons infected with communicable diseases, members of
organisations that advocate racial hatred or social violence, and so on. In
addition s 30 permits the Director-General to declare certain foreigners to
be ‘undesirable’. ‘Prohibited’ and ‘undesirable’ persons do not qualify for
visas.

[9] The submission on behalf of the appellants was that only
‘prohibited’ and ‘undesirable’ persons may be refused visas. For the rest,
once an application for a visa is made in the prescribed form, the Minister
is obliged to grant it.

[10] The submission needs only to be stated to be rejected. ‘Prohibited’
and ‘undesirable’ persons do not qualify for visas. If they apply then their
applications need not be considered. Applications from others must be
considered, and the Minister has a discretion to grant or refuse them. That
is what the language of the section says. The word ‘may’ in
subsection 3(a) is not capable of meaning ‘shall’, as submitted by counsel
for the appellants. Moreover, to construe it that way would give rise to
absurdities so obvious they need not be enunciated.

[11] Whether the appellants are entitled to either of the alternative
declarations calls for consideration only of the facts. This being an
application for final relief, the facts stated by the respondents are decisive
where they conflict with those stated by the appellants, except where
allegations or denials by the respondents are so far- fetched or untenable
that they may rejected on the papers alone.

[12] The facts alleged by the respondents are contained in an affidavit
deposed to by the Director-General of Home Affairs, confirmed and
elaborated upon by the Minister of Home Affairs. According to that
evidence in May 2011 the Gandhi Development Trust told the South
African High Commissioner in New Delhi that it wished to invite the
Dalai Lama to this country to award him the Mahatma Gandhi
International Award for Reconciliation and Peace on 9 October 2011. The
evidence of the deponents makes it plain that the proposal raised serious
concern that the visit by the Dalai Lama would put at risk the friendly
relations between this country and the government of the Peoples’
Republic of China (I will refer to it as China), which claims sovereignty
over the territory of Tibet. It can be expected in those circumstances that
the High Commissioner would have wasted no time communicating news
of the proposed visit to the government. Indeed, the Minister of Home
Affairs was made aware of the intended visit by no later than early June
2011. Meanwhile, the High Commissioner replied to the Trust advising
that a formal application for a visa would need to be submitted at the
appropriate time.

[13] On 20 June 2011, and again on 4 August 2011, the High
Commissioner and senior immigration officials met with a representative
of the Dalai Lama to discuss the forthcoming visit, and the requirements
for the grant. On the latter occasion the High Commissioner ‘encouraged’
the Dalai Lama’s representative to submit the visa applications closer to
the time of the visit. The explanation given for that ‘encouragement’ was
that a visa may be issued only for three months, and thus a visa issued
before then would be invalid by the time the visit commenced. It is
accepted by the respondents that that was not correct.

[14] On 26 August 2011 applications for visas for the Dalai Lama and
members of his entourage were submitted to the High Commissioner. The
applications were not accompanied by the passports of the applicants, and
they did not include the prescribed fee, and it seems that other formalities
had not been complied with. The office of the Dalai Lama was told that
the applications would not be processed until all the formalities had been
met.

[15] The Dalai Lama and members of the entourage who were to
accompany him were then travelling abroad and their original passports
could not then be furnished. By 20 September 2011 the passports had
been furnished, the fees had been paid, and all the formalities had been
met. The applications were then submitted to the Department of Home
Affairs, and the Minister was advised that a compliant application had
been received.

[16] The deponents explain at some length that the national interest of
the country takes priority in visa applications that ‘attract great public and
international interest’, and that the overriding consideration in ‘sensitive’
applications with foreign policy implications would be the best interest of
the country. They draw attention to South Africa’s important trade
connections with China, which need to be taken account of in its foreign
policy.  The Director-General alleges that ‘well aware of the possible
implications for our relations with China … in any decision that the
Minister took, and having had discussions with colleagues in DIRCO
who, in the context of the One China Policy that South Africa has
adopted, expressed their reservations concerning the visit of the Dalai
Lama, the Minister looked into all relevant factors that would have a
bearing on her decision’. He says that ‘while the views of DIRCO were

being refined and finalised for input into the decision-making functions of
Home Affairs’ the Dalai Lama and his entourage withdrew their
applications. He alleges that the Minister was ‘still seized with the matter’
when she was advised that the application had been withdrawn. In
contrast, the Minister, while on the one hand confirming what was said by
the Director-General, says on the other hand that she was ‘awaiting the
views that I had requested from officials in departments of state that have
a direct and substantial interest in the visit of the Dalai Lama to our
country, particularly DIRCO, when I was advised that he and members of
his entourage had withdrawn their applications for visas’.

[17] I accept that the proposed visit raised matters of high diplomatic
importance, justifiably calling for consultation, advice and consideration
of the kind described in the respondents’ affidavits. But that begs the
question what time was required to complete that process. If the
respondents mean to convey that they were not able to commence that
process before compliant applications were received then that is
disingenuous. But if they mean instead that four months was not
sufficient for the process then their vague evidence of what was done, and
the complete absence of any explanation of when it was done, falls far
short of showing that they had insufficient time. On the contrary, the
evidence points only to deliberate procrastination.

[18] The suggestion that the High Commissioner and senior
immigration officials genuinely believed that the validity of a visa may in
no circumstances exceed three months, and that a visa even for that
period could not be issued with inception at the commencement of the
visit, and that an application could not be considered and decided upon in
anticipation of the visa being issued, is so untenable that it can be

summarily rejected. The same is to be said of the suggestion that the
matter could not receive attention before a fully compliant application
had been made. The only inference I can draw from their conduct is that
they were intent upon procrastination.

[19] Counsel for the respondents rightly accepted that the Minister was
required by law to dispose of an application for a visa with reasonable
promptitude. We were asked to infer from the delay in this case that a
decision to refuse the application had indeed been made and that the
respondents chose not to announce it for the political implications that an
announcement held. I do not think the evidence justifies that inference
and for that reason a declaration that the visa had been refused is not
warranted. But what is justified by the evidence is an inference that the
matter was deliberately delayed so as to avoid a decision. It hardly needs
saying that the Minister is not entitled to deliberately procrastinate.
Procrastination by itself establishes unreasonable delay.

[20] The appeal is upheld with costs that include the costs of two
counsel. The order of the court below is set aside and substituted with the
following orders:
1.
It is declared that the First Respondent unreasonably delayed her
decision whether to grant or withhold the visas relevant to this case
and in so doing acted unlawfully.
2.
The respondents are to pay the costs of the applicants, including
the costs of two counsel.

__________________
R W NUGENT
JUDGE OF APPEAL

APPEARANCES:

For 1st appellant:
A Katz SC

D Simonsz

Instructed by:

Eisenberg & Associates, Cape Town

Webbers, Bloemfontein

For 2nd appellant:
M du Plessis

A Coutsoudis

Instructed by:

Nortons Incorporated, Johannesburg

McIntyre & Van der Post, Bloemfontein

For 1st & 2nd Amici Curiae:
J Brickhill

M Bishop

Instructed by:

John Smith & Associates, Cape Town

Lovius Block, Bloemfontein

For 3rd & 4th Amici Curiae:
D Borgström

Instructed by:

Legal Resources Centre, Cape Town

Lovius Block, Bloemfontein

For 2nd, 3rd & 4th respondents: M T K Moerane SC

L T Sibeko SC

L Gcabashe

Instructed by:

Office of the State Attorney, Cape Town

The State Attorney, Bloemfontein