A discussion of Ngiriyabandi v Border
Management Authority of South Africa (2025)
Written by Roy Bregman, an admitted attorney with over 51 years legal experience.
Introduction: When Administrative Law and Immigration Collide
South African immigration law is primarily governed by the Immigration Act 13
of 2002, which empowers immigration officers to refuse entry to foreign
nationals under specific conditions. However, what happens when such a decision
is challenged not through a formal review but via an urgent court application?
The recent case of
Ngiriyabandi v Border Management Authority of South Africa and Others [2025]
ZAWCHC 222 illustrates a fundamental legal principle: an administrative
decision must be reviewed, not interdicted, unless exceptional circumstances
exist. This principle is grounded in the Oudekraal doctrine and protects the
integrity of administrative processes.
The Legal Context: Review vs Interdict in Administrative Law
Administrative Action and Legal Effect
In administrative
law, a decision made by an authorised public official (such as an immigration
officer) is presumed valid and enforceable until it is set aside by a competent
court. This principle was cemented in the landmark case Oudekraal Estates (Pty)
Ltd v City of Cape Town 2004 (6) SA 222 (SCA), which held that an invalid
administrative act has legal consequences unless reviewed and nullified.
Procedural Pathways
in Immigration Matters
Section 8(1) of the
Immigration Act provides an internal remedy—an appeal to the Minister of Home
Affairs—for foreign nationals who are denied entry into South Africa. Only once
this appeal process is exhausted, or where it fails, can an applicant consider
a court challenge through judicial review under the Promotion of Administrative
Justice Act (PAJA).
Case Summary: Ngiriyabandi’s Failed Bid for Entry
Facts of the Case
·
Samson
Ngiriyabandi, a 75-year-old Burundian national, arrived at Cape Town
International Airport on 28 January 2025.
·
He
was refused entry due to a visa condition requiring entry by 26 January.
·
On
the same day, his attorneys filed an internal appeal under section 8(1).
·
While
the appeal was pending, he sought urgent court relief without notifying the
respondents.
Legal Arguments and
Court’s Reasoning
·
The
respondents argued the applicant sought a final interdict disguised as interim
relief without launching a proper review.
·
The
court held it could not set aside the decision via interdict.
·
The
applicant misled the court by omitting the pending internal appeal.
·
Substitution
relief was sought without pleading exceptional circumstances.
The Court’s
Conclusion
Justice Nuku
dismissed the application with costs, stating the case "never got off from
the starting block" due to procedural flaws.
Key Legal Takeaways
1. Administrative Decisions Require Review, Not Interdict
Courts will not
entertain an interdict to set aside an administrative act unless a proper
review is launched under PAJA.
2. Full Disclosure
is Crucial
Legal practitioners
must disclose all relevant facts, particularly any ongoing internal remedies.
3. Substitution
Orders Are Rare
These are only granted
in exceptional cases with clear, uncontested facts.
Conclusion: Procedure Matters in Immigration Litigation
This case
underscores the importance of following the correct legal channels when
challenging immigration decisions. Courts require proper review processes and
will not tolerate attempts to circumvent them.
Frequently Asked Questions (FAQs)
·
Can
a visa refusal be challenged in South Africa?
Yes, through an internal appeal under section 8(1) of the Immigration Act,
followed by judicial review under PAJA.
·
What
is the Oudekraal principle?
It holds that an administrative decision remains valid until set aside by a competent court.
·
Can
a court allow someone to stay in South Africa without setting aside a visa
decision?
Only in exceptional circumstances. Usually, relief must follow a successful review.
·
What’s
the difference between a review and an interdict?
A review challenges the legality of a decision; an interdict seeks to temporarily prevent an action.
