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

The case arose from two urgent applications heard together in the Western Cape High Court. The respondents, Mrs Louise Egedal-Johnson and Mr David Ross Henderson, were foreign nationals married to South African citizens. Both had overstayed their temporary residence permits under the Immigration Act 13 of 2002. Upon departing South Africa, they were issued notices at passport control declaring them ‘undesirable persons’ under section 30(1)(h) of the Act, in terms of a new regulatory regime. This declaration barred them from re-entering South Africa and resulted in separation from their spouses and, in Mrs Johnson’s case, her young child. They sought urgent interim relief (Part A) allowing them to return to South Africa and compelling the Department of Home Affairs to process internal appeals against their declarations of undesirability, pending determination of broader constitutional and administrative challenges (Part B) to the legality of the new regime. The High Court granted the interim relief. The Minister and Director-General of Home Affairs sought leave to appeal that interim order to the Constitutional Court.

The application for leave to appeal was dismissed with costs.

The case reaffirms the Constitutional Court’s restrictive approach to appeals against interim or interlocutory orders, particularly where no final determination of rights has occurred. It underscores the application of the OUTA principles and clarifies that temporary relief aimed at preventing immediate hardship does not necessarily infringe executive authority or undermine statutory internal remedies. The judgment is significant in immigration and administrative law contexts involving urgent constitutional relief.