Prince Mangosuthu Gatsha Buthelezi & Another v Minister of Home Affairs & Others

The 14th Dalai Lama was invited to visit South Africa in October 2011 by the Gandhi Development Trust, various institutions, and Archbishop Tutu to receive the Mahatma Gandhi International Award for Reconciliation and Peace. The visit was scheduled from 7-13 October 2011. Initial contact with the South African High Commissioner in New Delhi occurred in May 2011. Despite meetings in June and August 2011, and a visa application submitted on 26 August 2011, no decision had been made by 4 October 2011, leading to cancellation of the visit. This was the second occasion on which the Dalai Lama's visit to South Africa had to be cancelled due to visa delays. Compliant visa applications for the Dalai Lama and his entourage were finally submitted on 20 September 2011 with all formalities met. The appellants, both Members of the House of Assembly, sought declaratory relief regarding the lawfulness of the visa application process.

• Whether the Minister of Home Affairs was obliged under section 10A of the Immigration Act 13 of 2002 to grant visas to applicants who are not prohibited or undesirable persons
• Whether a visa had been refused by the Minister
• Whether the Minister unreasonably delayed making a decision on the visa application
• Whether the conduct of the respondents in dealing with the visa applications was unlawful
• Whether there was a live controversy warranting declaratory relief

The appeal was upheld with costs including the costs of two counsel. The order of the Western Cape High Court was set aside and substituted with: (1) A declaration that the First Respondent (Minister of Home Affairs) unreasonably delayed her decision whether to grant or withhold the visas and in so doing acted unlawfully; (2) An order that the respondents pay the costs of the applicants, including the costs of two counsel.

The binding legal principles established are: (1) Section 10A(3)(a) of the Immigration Act 13 of 2002 confers discretion on the Minister of Home Affairs to grant or refuse visas; the word 'may' does not mean 'shall' and does not create an obligation to grant visas to all applicants who are not prohibited or undesirable persons. (2) The Minister is required by law to dispose of visa applications with reasonable promptitude. (3) Deliberate procrastination by itself establishes unreasonable delay and constitutes unlawful administrative conduct. (4) A decision-maker is not entitled to deliberately delay making a decision to avoid the political or diplomatic consequences of that decision.

The court noted that the proposed visit raised matters of high diplomatic importance, justifiably calling for consultation, advice and consideration given South Africa's important trade connections with China and its One China Policy. The court acknowledged that such considerations are relevant to the exercise of discretion under the Immigration Act. However, the court observed that the real question was what time was required to complete the consultation process, and four months was more than sufficient. The court also commented that if political considerations made a decision difficult, this did not justify avoiding making a decision altogether through deliberate delay.

This case is significant in South African administrative law as it establishes clear principles regarding the duty of decision-makers to act with reasonable promptitude. It confirms that deliberate procrastination in administrative decision-making constitutes unlawful conduct, even where politically sensitive foreign policy considerations are involved. The judgment reinforces that administrative authorities cannot avoid making decisions by deliberately delaying, and that such conduct amounts to unreasonable delay establishing unlawfulness. The case also demonstrates the court's willingness to grant declaratory relief where there is a live controversy, even regarding past events, where the declaration would have practical effect for future conduct. It illustrates the limits of diplomatic and foreign policy considerations as justifications for administrative delay.