Minister of Home Affairs and Others v Johnson and Others; Minister of Home Affairs and Another v Delorie and Others

Two separate applications with similar facts were heard together. Louise Hendrickson Egedal-Johnson (Mrs Johnson) and David Ross Henderson (Mr Henderson) both overstayed their temporary residence permits under the Immigration Act 13 of 2002. When leaving on overseas trips, they were issued notices at airport passport control declaring them "undesirable persons" under section 30(1)(h) of the Act, preventing them from returning to South Africa. Both were married to South African citizens. Mrs Johnson had a young child born of her marriage who was separated from the father. Mr Henderson was separated from his wife and two children. Under the previous legal regime, they could have left the country, paid an administrative fine, and applied for fresh permits from outside. The new legal dispensation precluded this route and barred them from being granted temporary permits to return. The High Court (Yekiso J) granted urgent temporary relief in Part A of their applications, suspending the operation of the directive and individual declarations of undesirability, allowing them to return subject to reasonable conditions. Part B seeking permanent relief was postponed. The Minister and Director-General applied to the Constitutional Court for leave to appeal.

• Whether leave to appeal should be granted against a High Court order granting temporary relief
• Whether the High Court order impermissibly encroached on executive authority
• Whether the High Court order rendered provisions of section 7(2) of the Promotion of Administrative Justice Act obsolete
• Whether the High Court order created a precedent allowing internal remedies under the Immigration Act to be bypassed
• Whether the requirements for hearing an appeal against temporary relief as set out in OUTA were met

The application for leave to appeal was dismissed with costs.

Leave to appeal will not be granted against a High Court order granting temporary relief unless the requirements set out in National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18 are met. Where temporary relief is specifically directed at particular individuals, does not finally dispose of factual or legal issues, does not create a general suspension of legislation or regulations affecting others, and the substantive validity of the impugned measures remains to be determined in final relief proceedings, it is not in the interests of justice to grant leave to appeal against such temporary relief.

The Court made brief observations that the High Court order did not have the deleterious effects claimed by the applicants - namely impermissibly encroaching on executive authority, rendering section 7(2) of PAJA obsolete, or creating a precedent allowing internal remedies under the Immigration Act to be bypassed. However, these observations were not elaborated upon in detail as the Court's primary basis for refusing leave to appeal was the temporary nature of the relief granted and the failure to meet the OUTA requirements.

This case reinforces the Constitutional Court's approach to appeals against interim or temporary relief as established in OUTA. It clarifies that leave to appeal will not ordinarily be granted against temporary relief that does not finally dispose of substantive issues and is limited in scope to specific parties. The judgment emphasizes judicial restraint in interfering with temporary measures designed to preserve the status quo pending final determination of rights. It also demonstrates the Court's willingness to protect family unity and constitutional rights through interim relief in immigration matters, particularly where the consequences of declarations of undesirability would cause immediate and serious harm to family relationships. The case illustrates the Court's approach to balancing executive authority in immigration matters with individual rights and the need for temporary protection pending final adjudication.