Littlewood v Minister of Home Affairs and Others

The appellants, the Littlewood family, are British citizens who had been living in South Africa for over two years. They believed they held valid permanent residence permits endorsed in their passports, but later discovered the permits were not authentic. As a result, their presence in South Africa was unlawful under s 23 of the Aliens Control Act 96 of 1991 and they faced deportation. Having established a home, business, and schooling for their children, they applied to the Minister of Home Affairs under s 28(2) of the Act for a temporary exemption from s 23 on the basis of ‘special circumstances’, pending an application for permanent residence. The Minister refused the exemption, relying on the seriousness of possessing fraudulent permits and stating that the Department was not responsible for the appellants’ predicament. The High Court dismissed their review application, and they appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The decision of the court a quo was set aside. The Minister’s refusal of the exemption was reviewed and set aside, and the application was remitted to the Minister of Home Affairs for reconsideration, supplemented by any further information required. The respondents were ordered to pay the costs of the application.

This case is significant in South African administrative and immigration law for reaffirming that a statutory discretion must be genuinely exercised by the decision-maker. It confirms that a failure to consider the correct statutory question—here, the existence of ‘special circumstances’—amounts to a failure to apply one’s mind and renders the decision reviewable. The judgment also reinforces the principle that courts will generally remit matters to the original decision-maker rather than substitute their own decision, except in exceptional circumstances.