2.
The holder of the exemption may be allowed to enter into or depart
form the Republic of South Africa in terms of
section 9 of the Act,
read together with the Immigration Regulations, 2014, provided that
he or she complies with all other requirements
for entry into and
departure from the Republic, save for the reason of not having valid
permit indicated in his or her passport;
and
3.
No holder of exemption should be required to produce-
(a)
a valid
exemption certificate;
(b)
an
authorization letter to remain in the Republic contemplated in
section 32(2) of the Immigration Act when making an application for
any category of the visas, including temporary residence visa.”
5.
The First
Respondent, and any other parties opposing this application, are
directed to pay the costs, jointly and severally, the
one paying the
other to be absolved.”
[5]
The factual
context of the main application is largely (but not entirely)
undisputed. It can be summarized as follows:
-
In 2009, the
then Minster of Home Affairs took a decision that a particular class
of foreign persons, being Zimbabwean nationals,
would be granted
exemption from the ordinary visa processes in terms of the
Immigration Act 13 of 2002 (the Immigration Act) and to allow this
class of persons to apply for special permits that would allow them
to either work, study or start a business in
South Africa. This
exemption regime, known as the Dispensation of Zimbabwe Project (DZP)
was intended to grant an estimated
1,5 million undocumented
Zimbabweans an opportunity to regularize their stay in South Africa.
-
Upon
termination of the DZP regime it was extended by the then Minister by
way of the Zimbabwean Special Permit (ZSP) regime, which
expressly
allowed those who had unsuccessfully applied for DZP permits to
re-apply and for those who had such permits to apply
for extensions
thereof.
-
A third
extension of this regime, resulted in the Zimbabwe Exemption Permit
(ZEP) regime, which extended the lifespan of ZSP permits.
This
regime, involving some 178 000 permit holders, expired through
effluxion of time on 31 December 2021.
-
The current
Minister decided to extend the validity period of the ZEP regime for
a year until 31 December 2022.
-
On 2 September
2022, the Minister published a further directive, in terms of which
the “grace period”, being the lifetime
of the ZEP regime,
was further extended to 30 June 2023. The “grace”,
according to the Minister refers to an
opportunity to permit holders
to apply for individual extensions of their permits or to otherwise
regularize their stay in South
Africa. The press statement by
the Minister, however announced that there would be “no
further extension granted by the Minister”.
-
Against this
background, the HSF contends that the Minster, in taking the decision
not to further extend the ZEP regime (or more
precisely, to only
extend it until 30 June 2023) and to refuse to consider even
individual further extension as contemplated in
section 31(2)(b) of
the Immigration Act), did so unlawfully.
-
The five
grounds relied on by the HSF for its challenge against the Minister’s
decision are the following: firstly that the
decision was taken in a
procedurally unfair and irrational fashion, particularly in that it
was taken in the absence of any prior
consultation process with
affected ZEP holders; secondly, that it was in breach of the
Constitutional rights of ZEP holders, their
spouses and children;
thirdly, that it was taken without any regard to the impact thereof
on any persons who had, by way of the
succesive regimes, been
documented and legally in the country, some for over 13 years and who
had roots in the country by way of
businesses, residences and
children at school, some who had been borne here; fourthly, that it
reflected a material error of fact
as to the present conditions in
Zimbabwe and lastly that the decision is otherwise unreasonable and
irrational.
[6]
As already
indicated before, the main application is opposed by the Minister.
In the answering affidavit, whilst not disputing
that the conduct of
the Minister amounts to a decision reviewable in terms of the
Promotion of Administrative Justice Act 3 of
2000 (PAJA), and by
conceding that there was no prior consultative process as contended
for by the applicants, the DG contends
that the regimes were always
only intended to be temporary in nature and that the Minister was
justified in only extending the
ZEP regime’s lifetime until 30
June 2023.
[7]
The HSF does
not contend that the Minister is obliged to extend the exemption in
perpetuity, but contends that the present decision
is unlawful and
that it falls short of fundamental requirements. Until this is
remedied, the applicants claim the interim
orders provided for in
prayer 4 of the HSP’s amended Notice of Motion quoted in
paragraph [4] above.
[8]
It is in the
above dispute/s which ATDFASA, hereafter referred to as the Truck
Drivers Forum, and Dudula seek to intervene and be
joined as
respondents. Both these proposed respondents seek to have the
main application dismissed.
The
Truck Drivers Forum’s intervention application
[9]
The Truck
Drivers Forum is a voluntary association with perpetual succession,
registered as a non-profit organization with registration
number
K[...]. Its stated mission and vision is, according to the
affidavit deposed to by its spokesperson, “…
to
promote truck driving as a professional sector, to optimize and open
job opportunities”.
It does not claim in its papers that ZEP holders are “taking
the jobs of South African truck drivers”
(as debated in oral
argument between the parties) but assert that the ZEP regime was
unlawful since the inception of it (and its
predecessors) and that
any extension thereof would be unlawful. The Truck Drivers
Forum further allege that the ZEP regime
had “…
contributed
to the proliferation of illegal, undocumented drivers in the trucking
industry in the Republic”.
Whilst one of the Truck Drivers Forum’s aims is expressly “…
to make
only citizens of South Africa get jobs, own businesses and properties
…”,
if further aims to prevent “illegal
and undocumented truck drivers [to be] employed in the Republic”.
The truck Drivers Forum’s general objectives, not relating to
documented or exempted permit holders, are to
be part of the
negotiations at the National Bargaining Council for Road Freight
Logistics, Labour Sectors and in relation to labour
laws regulating
participants in the trucking industry.
Dudula’s
intervention application
[10]
Dudula is
similarly a voluntary association with perpetual succession.
Its spokesperson deposed to a very brief founding affidavit.
Dudula claims that it is concerned about and opposed to criminality
in general and in particular when perpetrated by illegal foreigners
who have entered the country. It is of the view that the ZEP
regime exacerbates this situation.
The
legal requirements
[11]
The
Truck Drivers Forum and Dudula have correctly identified Rule 12 as
the applicable procedure whereby they can apply to intervene
as
respondents. They correctly accepted that the Rule does not
create a right of joinder, but makes such joinder subject
to the
court’s discretion.[1]
[12]
It
is trite that a party seeking to intervene must show that “he
is specially concerned in the issue, the matter is of common interest
to him and the party he desires to join and the issues
are the
same”.[2]
These factors may create a “direct
and substantial interest”
in the subject-matter. This direct and substantial interest is
the “decisive
criterion”.[3]
[13]
These
requirements have been addressed as follows in authority to which the
Truck Drivers Forum have referred to in their heads
of argument,
namely Gordon
v Department of Health, KwaZulu Natal[4]:
“the
issue in our matter, as it is in any non-joinder dispute, is whether
the party sought to be joined has a direct and substantial
interest
in the matter. The test is whether a party that is alleged to
be a necessary party, had a legal interest in the
subject matter,
which may be affected prejudicially by the judgment of the Court in
the proceedings concerned” and
“if
the order or judgment sought cannot be sustained and carried into
effect without necessarily prejudicing the interests of a party
or
parties not joined in the matter, (such party) must be joined”.
[14]
The court was
further referred to the following applicable pronouncements:
“A
party is entitled to join and intervene in proceedings where they
have a direct and substantial interest in the matter.
A person
is regarded as having a direct and substantial interest in an order
if that order would directly affect that person’s
rights or
interests. The interest must generally be a legal interest in
the subject matter of the litigation and not merely
a financial
interest.”[5]
and
“The
word “interest” … has been interpreted to mean a
direct and substantial interest which a person is required
to have in
the subject matter before he/she can be said to have locus standi in
such a matter or before such a person may be joined
or be allowed to
be joined in proceedings. Direct and substantial interest is a
direct and substantial interest in the order
that a Court is asked to
make in a matter. It is not enough if a person has an interest
in a finding or in certain reasons
for an order.”[6]
[15]
Lastly, the
right to be heard in respect of a matter in which a party has an
interest, has been dealt with by the Constitutional
Court as follows:
“A
person has a direct and substantial interest in an order that is
sought in the proceedings if the order would directly affect
such a
person’s rights or interest. In that case the person
should be joined in the proceedings. If the person
is not
joined in the circumstances in which his or her rights or interest
will be prejudicially affected by the ultimate judgment
that may
result from the proceedings, then that will mean that a judgment
affecting that person’s rights or interests has
been given
without affording that person an opportunity to be heard. That
goes against one of the most fundamental principles
of our legal
system. That is that as a general rule, no Court may make an
order against anyone without giving that person
the opportunity to be
heard”.[7]
[16]
In
assessing whether the requirements set out above have been satisfied,
a court must bear in mind that a mere allegation that a
party has an
alleged interest is insufficient, there must be prima
facie
proof of such interest. At the same time, an intervening party
need not show a prospect of success, but merely that, if its
allegations are accepted, it will be successful.[8]
Evaluation:
Dudula’s intervention
[17]
The sole claim
to a right to intervene contained in Dudula’s 19-paragraph
founding affidavit, is the following: “The
applicant is a civil rights movement whose main objective is to fight
crime and criminality using legal protests and court applications.
The organization is of the view that the extension of the
Zimbabwean Exemption Permits together with a high number of illegal
immigrants in the country is compounding the already dire situation
of criminality. Accordingly, the applicant submits that
it has
a direct and substantial interest in the main application …”.
[18]
Not only are
these statements devoid of particularity or underlying evidence, they
lack cohesion and substance. Is it alleged
that all ZEP holders
are criminals? That is an untenable proposition and cannot not
be accepted as evidence. It can
also not be accepted as a
general statement applicable to either the present validity period of
the ZEP regime or any extension
thereof. The affidavit seems to
suggest that ZEP holders are illegal immigrants while the opposite is
the position: during
the period of validity of their permits, ZEP
holders are both documented and lawful foreigners. Dudula’s
premise upon
which it claims a right to intervene is therefore
without foundation.
[19]
It must follow
that Dudula has not presented any prima facie evidence indicating a
direct and substantial interest in the main application
as required
by the case law discussed earlier.
Evaluation:
Truck Drivers Forum’s Intervention
[20]
In similar
fashion as with Dudula, the Truck Drivers Forum could not indicate
how many ZEP holders operate in the truck driving
industry.
This aspect of their application was heavily criticised by the HSF
but, by the same token, the HSF could not present
any contrary
figures or statistics. It did, however, concede that there are
an unknown number of ZEP holders in the relevant
industry in which
the Truck Drivers Forum has an interest.
[21]
While
it may be impermissible for the Truck Drivers Forum to raise the
issue of alleged illegality of the ZEP regime as a whole,
based on
its interpretation of section 31(2)(b) of the Immigration Act, as a
collateral defence to the main application but without having
initiated any claim for relief in that regard, not even by way
of a
proposed counter-application, their alternate argument might have the
requisite prospect of success. This argument is
to the effect
that, once the ZEP regime has expended its lifetime through the
effluxion of time, it simply ceases to exist and
the
Oudekraal-principle[9]
which would have applied in respect of the decisions of the Minister
and his predecessors to create an exemption regime, would
fall away.
[22]
Based on the
above, which issue I need not decide, the Truck Drivers Forum claims
that the moment that the relief claimed in paragraph
4 of the HSF’s
amended notice of motion features before a court in the main
application, it has a direct and substantive
interest in the extent
by which extensions of the validity of permits by the court may or
may not impact on their members.
I find that the Forum’s
concerns in this regard and regarding the regulation of truck drivers
and how the Forum is going
to deal with this aspect in bargaining
councils, prima
facie
constitute sufficient direct and substantial interest justifying its
intervention.
[23]
Insofar as the
matter might raise constitutional issues, I find that it would, in
addition to the above requirements, be in the
interests of justice
that the validity arguments raised by the Truck Drivers Forum, be
ventilated in the main application.
I need to stress that no
finding is being made in allowing the intervention, as to any of the
aspects contained in the Truck Drivers
Forum’s arguments.
That will be for the court hearing the main argument to determine.
[24]
I therefore
find that the Truck Drivers Forum is entitled to intervene in the
main application as the third respondent.
Practicalities
[25]
At the time
when the intervention applications were allocated to me for hearing,
it was envisaged that a decision in respect thereof
had to be made in
a reasonably short span of time, hence this judgment within five days
from hearing the matters. It was
also envisaged, should any
party be granted leave to intervene, the consequence should not
derail the hearing of the main application.
For this purpose,
Adv Mtshweni, who presented the arguments on behalf of the Truck
Drivers Forum, committed his client to the delivery
of its answering
affidavit in the main application within 10 days from date of this
judgment. There should then be sufficient
time for the
applicants in the main application to deliver any replying affidavits
in response to what will principally be legal
arguments and all
parties can timeously supplement their heads of argument for the
hearing two months hence.
Costs
[26]
Although the
general principle is that costs should follow the event, Adv
Budlender SC was (rightly) more concerned about the merits
of the
applications than seeking to recover costs from any of the
intervening parties, particularly the ultimately unsuccessful
party
in this case, being Dudula. Having regard to the nature of the
subject matter and of the parties involved I, in the
exercise of this
court’s discretion, find it fair not to mulct Dudula with
costs. I accept the bona
fides of
its attempted intervention, even if unsuccessful, which is a factor I
took onto account in reaching the aforesaid conclusion.
In
respect of the successful application by the Truck Drivers Forum, the
suggestion was that costs should be costs in the cause,
and I agree
that this would be an appropriate order at this stage.
Order
[27]
The following
order is made:
1.
The
application by Operation Dudula to intervene in the main application
is refused.
2.
The
application by All Truck Drivers Forum and Allied South Africa to
intervene in the main application is granted and it is joined
as the
third respondent therein.
3.
The
aforementioned third respondent is directed to deliver any answering
or supplementary affidavit that it may wish to deliver
in the main
application within 10 (ten) days from date of this order.
4.
The costs of
the third respondent’s application for intervention, shall be
costs in the cause of the main application.
N DAVIS
Judge of the High Court
Gauteng Division,
Pretoria
Date of Hearing: 6
February 2023
Judgment delivered: 10
February 2023
APPEARANCES:
For
the First Applicant: Adv S Budlender SC together
with
Adv
C McConnachie &
Adv
Z Raqowa
Attorney
for the First Applicant: DLA Piper South Africa (RF) Inc.,
Johannesburg
c/o,
Macintosh Cross &
Farquharson, Pretoria
For
the Second Applicant: Adv D Simonsz together with
Adv N Nyembe
Attorney
for the Second Applicant: Norton Rose Fulbright South Africa
Inc, Cape Town,
c/o,
MacRobert Attorneys Pretoria
For
the 1st &2nd Respondent: No
appearances
For
the First Intervening Party: Adv M M Mojapelo together
with
Adv
D Mtsweni
Attorney
for the First Intervening Party: MJ Mashao Attorneys,
Pretoria
For
the Second Intervening Party:
Adv M C Ntshangase
Attorney
for the Second Intervening Party: D Mabuna Inc. Attorneys,
Johannesburg
c/o,
MJ Mashao Attorneys, Pretoria
[1]
United
watch and Diamond Co (Pty) Ltd v Disa Hotels Ltd
1972
(4) SA 409 (C).
[2]
Harms,
Civil
Procedure in the Supreme Court,
Vol 2 B12.3.
[3]
Wynn
v divisional Commission of Police
1973
(2) SA 770 (E), Ex
parte Beukes and Bekker
[1998] 1 All SA 34 (LCC) at 41 – 43 and Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637 (A).
[5]
The
Minister of Finance v Afri Business NCP
2022
(4) SA 362 (CC).
[6]
Justice
Nhlanhla Lebea v MEC for Public Works and Infrastructure, Free State
(unreported)
[2022] ZACC 40 (with reference to an analogous rule).
[8]
Ex
parte Moosa: in re Hassim v Harrop Allin (Pty) Ltd
1974
(4) SA 412 (T).
[9]
This is a reference to Oudekraal
Estate (Pty) Ltd v City of Cape Town
2010 (1) SA 333 (SCA) at para 26, which confirmed that an
administrative act, event an alleged unlawful act, remains in
existence and s capable
of having legally valid consequences until
it is set aside by a court.
