Nicholas Carl Stewart Littlewood and Others v Minister of Home Affairs and Another

The Littlewood family (Nicholas Littlewood, his wife Heather, and their two minor daughters) were British citizens living in South Africa. Towards the end of 2000, when Littlewood attempted to renew his passport, he discovered that the permanent residence permits endorsed in his and his wife's passports, ostensibly by the Department of Home Affairs, were fraudulent. The family had been in South Africa for more than two years, having severed ties with Britain, established a home, started a business, and enrolled their children in school. Littlewood explained that in July 1998, he entered South Africa on a business visa to work for a French paving firm (Ellis Beton Décoratife), which promised to arrange permanent residence permits. Their passports were given to the firm's local representative, Robin le Fevre, who returned them with what appeared to be valid permanent residence permits. When the firm ceased operations in September 1999, Littlewood started his own business. In mid-2001, the Littlewoods applied to the Minister of Home Affairs for a temporary exemption from section 23 of the Aliens Control Act 96 of 1991 to allow them to apply for permanent residence while remaining in South Africa. The Minister refused the application in October 2001.

• Whether the Minister of Home Affairs properly exercised his discretion under section 28(2) of the Aliens Control Act 96 of 1991 in refusing to grant an exemption from section 23
• Whether the Minister applied his mind to whether 'special circumstances' existed justifying an exemption
• Whether the decision to refuse the exemption application was lawful, reasonable and procedurally fair
• What remedy is appropriate where an administrative decision-maker fails to exercise the discretion conferred by statute

The appeal was upheld with costs. The order of the High Court was set aside and replaced with the following order: 'The Minister's decision is set aside. The application for an exemption, supplemented by such information as may be required for a proper consideration of the application, is remitted to the Minister for re-consideration. The costs of the application are to be paid by the respondents.'

Where a statute confers a discretion on an administrative decision-maker to grant relief if 'special circumstances' justify the decision, the decision-maker must actually apply his or her mind to whether such special circumstances exist. A failure to consider the statutory question amounts to a failure to exercise the discretion conferred by the statute, and such a decision must be set aside. The proper remedy, in the absence of exceptional circumstances, is to remit the matter to the decision-maker for proper reconsideration rather than for the court to substitute its own decision.

The court made observations on the conduct expected of public officials in administrative proceedings, noting that public officials should exhibit courtesy and restraint in official dealings and should refrain from alleging fraud without considerable reflection, even when dealing with persons they disbelieve. The court also noted that litigants ought always to conduct litigation with decorum, even when provoked. While the court acknowledged that the departmental official's ill-considered fraud allegations against the Littlewoods were inappropriate, it declined to grant a special costs order, noting that the appellants had been recompensed by replying in kind (which was itself inappropriate).

This case is significant in South African administrative law as it demonstrates the requirement that administrative decision-makers must actually exercise the discretion conferred upon them by statute. The case illustrates that where a statute requires consideration of whether 'special circumstances' exist, the decision-maker must genuinely apply their mind to that question rather than refusing an application on other grounds. It reinforces the principle that failure to exercise a statutory discretion renders the decision reviewable and subject to being set aside. The case also confirms the principle that courts will only exceptionally substitute their own decision for that of an administrative decision-maker, and that the usual remedy is to remit the matter for proper reconsideration. Additionally, it provides guidance on the proper conduct expected of public officials in administrative proceedings.