Ngiriyabandi v Border Management Authority of South Africa and Others (2025/013010) [2025] ZAWCHC 222 (27 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(WESTERN
CAPE DIVISION, CAPE TOWN)

JUDGMENT

Not Reportable

Case no: 2025-013010

In the matter between:

Neutral
citation:      Ngiriyabandi
v Border Management Authority of South Africa and Others (Case
no 2025-013010) [2025] ZAWCHC 222 (27 MAY 2025)

Coram:                       
NUKU J 

Heard:                      

19 February 2025

Order
made on:       
19 February 2025  

Reasons
delivered:  27 May 2025

Summary:
Interdict – Whether it is
competent for a court to set aside an administrative decision that
has not been challenged by way of a review application
–
application for an interdict to set aside the decision to refuse the
applicant entry into the Republic of South Africa
dismissed with
costs.

ORDER

The application is
dismissed with costs

Nuku J

[1]       
The applicant, a 75-year-old Burundian national arrived at the Cape
Town International
Airport on 28 January 2025 where he was refused
entry into the Republic of South Africa. His refusal of entry was on
account of
him being in possession of a visitor’s visa which
included a condition that he should report to the port of entry on or
before
26 January 2025. The immigration officer that attended to the
applicant took the view that the applicant’s visa had expired

and hence refused him entry.

[2]       
On the same day, the applicant, who was assisted by his attorneys of
record in this
matter, lodged an appeal with the second respondent,
in terms of section 8 (1) of the Immigration Act 13 of 2002
(Immigration Act)
against the decision refusing him entry.

[3]       
On 31 January 2025, Mr Wesley Fester, who is in the employ of the
first respondent
and who had received the applicant’s appeal,
requested further documentation from the applicant’s attorneys.

[4]       
Whilst the appeal was still pending, the applicant approached the
Court for urgent
relief on 31 January 2025 and without notifying any
of the respondents. The substantive relief that the applicant sought
was a
rule nisi returnable on 18 February 2025 requiring the
respondents to show cause why:

‘4.1     
The first respondent’s decision, taken on 28 January 2025, to
refuse the applicant entry
into the republic be set aside;

4.2      
The applicant be allowed to enter and remain in South Africa on his
visitor’s visa
until 20 March 2025.’    

[5]       
The matter was in Court on 31 March 2025 when the rule nisi
was issued. As the rule nisi was to operate as an interim
interdict, the respondents were obliged to allow the applicant entry
into the republic pending the
return date.

[6]       
The respondents opposed the application, and the matter came before
me on 18 February
2025 for argument on whether to confirm or
discharge the rule nisi. I postponed the matter to 19 February
2025 when argument proceeded.

[7]       
As was pointed out on behalf of the respondents, the relief that the
applicant sought
was a final interdict setting aside the decision to
refuse him entry. But the applicant had not instituted any review
proceedings.
Instead, he was seeking an interdict setting aside an
administrative decision which had not been challenged by way of
review and
the question was whether that was competent.

[8]       
It was submitted on behalf of the respondents that based on the
so-called Oudekraal principle, an administrative action has
legal consequences until and unless set aside by a court of competent
jurisdiction.

[9]       
Counsel for the applicant was constrained to concede that it would
not be competent
for this Court to set aside a decision under the
pretext of interdictory relief and in the absence of a challenge by
way of a review
application.

[10]     
What was more in this matter was the fact that the relief sought was
not only the setting aside
of the decision but went further in that
the applicant sought a substitution order, relief which, even where
competent, is granted
in exceptional circumstances. The applicant had
pleaded neither review grounds nor exceptional circumstances. As the
saying goes,
the application never got off from the starting block.

[11]     
There is one more aspect that requires mention. The application was
launched after an internal
appeal, in terms of section 8 (1) of the
Immigration Act had been lodged but this was not mentioned at all in
the applicant’s papers. To the urgent judge who granted the
rule nisi, the impression was created that the applicant had
no other satisfactory remedy which was clearly misleading. Even more
so when
it was the same legal representative who had lodged the
section 8(1) appeal.    

L G NUKU

JUDGE
OF THE HIGH COURT

Appearances

For applicant:           
           
M
Botha

Instructed by:           
           
ZS
Inc, Cape Town