C1V/APN/293/88
IN THE HIGH COURT OF LESOTHO
In the matter between:-
GUISEPPE ANTONIO MARIO FLORIO Applicant
AND
MINISTER OF INTERIOR AND
CHIEFTAINSHIP AFFAIRS 1st Respondent
ATTORNEY GENERAL 2nd Respondent
JUDGENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 7th day of October, 1988
This is an application for an order restraining the respondents from expelling the applicant from Lesotho pending the final determination
of an application about to be instituted by the applicant for the setting aside of the cancellation of his Residence Permit No. 358/80.
The applicant is a citizen of the Republic of South Africa. He is a resident of Lesotho in Maseru by virtue of an indefinite residence
permit No. 358/80 which was given to him on the 15th April, 1980. Prior to that date he had been a resident of Lesotho by virtue of temporary residence permits which were renewed from time to time since 1974 when he came to Lesotho.
2
The applicant's wife is a citizen of Lesotho. He has four minor children who reside and attend school in Maseru.
On the 12th September, 1988 the applicant was notified by the Director of Immigration that his residence permit No. 358/80 was being cancelled by the 1st respondent in accordance with section 10 (1) of the Aliens Control Act 1966. The letter which contained the notice is Annexure GF2 and reads as follows:
"Dear Sir,
CANCELLATION OF YOUR RESIDENCE PERMIT No. 358/80
I am directed by the Hon. Minister of the Interior to inform you, as I hereby do, that your indefinite residence permit No. 358/80 is cancelled in accordance with Section 10 (1) of Aliens Control Act No. 16 of 1966.
You are therefore given up to 2nd October, 1988 to leave the country; after which date your presence in Lesotho will be unlawful.
Yours faithfully,
f/ Director of immigration."
Upon receipt of the letter of the Director of Immigration the applicant instructed his attorneys to enquire about the cause of the
cancellation of his residence permit. His attorneys wrote a letter to Director of Immigration which is Annexure GF3 and reads as follows:
3
"Dear Sir.
CANCELLATION OF RESIDENCE PERMIT No. 358/80 -G.A.M. FIORIO
We have been consulted by Mr. G.A.M. Fiorio pursuant to your letter dated 12 September 1988, who has instructed us to represent him in this matter.
Our client is understandably very concerned about the Honourable Minister of the Interior's decision as conveyed to him in your
letter. You are no doubt aware that our client has substantial business interests in Lesotho and he has a large number of citizens
of Lesotho in his employ. If he has to leave Lesotho it would take a considerable time to wind up his business operations.
We would be obliged if you could inform us of the reasons which influenced the Minister to form the opinion, in accordance with the principles set out in the First Schedule to the Alien's Control Act of 1966, that our client should no longer sojourn in Lesotho. In view of the relatively short period remaining before our client is required to leave the country, we should be grateful if you could respond to our request by noon, Thursday, 22 September, 1988.
A copy of our letter is being sent to the Honourable Minister of the Interior direct.
ISRAEL & SACKSTEIN"
The Director of Immigration responded to the above mentioned letter on the 26th September, 1988 by a letter which is Annexure GF reads as follows:
4
re:- CANCELLATION OF RESIDENCE PERMIT No. 358/80: G.A.M. FLORIO
I refer to your letter Mr. Redelinghuys/ml/dated 13th September, 1988, which was received in my office only on 20th September, 1988.
I am instructed by the Honourable Minister of Interior, Chieftainship Affairs and Rural Development that he has in terms of Section 10 (1) of the Aliens Control Act 1966, formed the opinion that your client should no longer sojourn in the Kingdom of Lesotho. In arriving at the said decision the Minister had taken into account the principles of the first schedule to the Aliens Control Act especially those set out in paragraph (3).
It is on the above basis that the Minister directed me to issue the notice of cancellation of the indefinite permit which I did by my letter IMM/S/IPE/1-75 dated 15th September, 1988.
I am directed by the Minister to inform you that he is unable to disclose the grounds on which he formed the opinion referred to in paragraph (2) hereof, as its disclosure would adversely affect the public satefy and the security of the Kingdom of Lesotho.
You may make any representation to the Minister not later than 28th September, 1988 if you so wish.
DIRECTOR OF IMMIGRATION"
In his founding affidavit the applicant alleges that he intends to contest the aforesaid cancellation of his residence permit but there is very little time available for him to do so. He avers that he has no other remedy but to apply for an interdict restraining the 1st respondent from expelling him from Lesotho pending the final determination of the application he intends to bring contesting the
5
said cancellation of his residence permit. He alleges that he has not contravened any of the conditions of his residence permit.
The applicant is a businessman in this country and he is the Managing Director and a majority shareholder and proprietor of the following companies:
Lesotho Hotels International (PTY) LTD which runs several hotels in Lesotho;
Machache Diamond Cutting Works (PTY) LTD;
Mountain View Hotel (PTY) LTD;
Lesotho Quality Aggregate Industries (PTY) LTD.
He also owns some immovable property at Ha Mabote.
In his opposing affidavit the 1st respondent deposes that his decision to cancel applicant's residence permit was taken after he had fully considered the relevant information at his disposal and after he had made a full inquiry,and it was done bona fide and in the national interest of Lesotho. He did not cancel applicant's residence permit on the ground that he was in breach of any condition or conditions imposed by the permit but that his decision to cancel it was based on section 10 (1) of the Aliens Control Act 1966 and paragraph 3 of the First Schedule to that Act.
6
He avers that the letter Annexure GF3 was written on the 13th September, 1988, yet it was delivered on the 20th September, 1988. The applicant could simply have delivered that letter to him by hand because his (applicant's) lawyers' office and his (1st respondent's) are situated in Maseru. The first respondent denies that the applicant had no time to contest his decision to cancel the permit. He avers that the applicant is playing for time in order to defeat his decision.
The 1st respondent further deposes that the reasons which impelled his decision could not be disclosed in the public interest as the affidavit on the Chairman of the Military Council and Council of Ministers reveals.
In his supporting affidavit the Chairman of the Military Council and Council of Ministers avers that the Government has information that the continued sojourn of the applicant in Lesotho is not in the interests of defence, public safety and public order; and that after careful review of all available information he has formed the opinion that on grounds of public interest and public safety the reasons on which the opinion of the 1st respondent was based should not be disclosed as the disclosure would be injurious to public interest and even to relations with other countries.
The applicant has filed a replying affidavit in which he denies that he is playing delaying tactics in order to defeat the 1st respondent's
decision in cancelling the permit. He states that his delay to deliver the letter Annexure GF3 was due to the visit of His Holiness
to Lesotho form the 14th to the 16th September,
7
1988 which severely disrupted the general administration and the running of the country.
It is trite law that in an application for an interdict the applicant must establish -
a clear right on his part;
an injury committed or well - founded fear that an injury will be committed by the respondent ; and
that there is no other remedy open to the applicant which will afford adequate protection from the mischief which is being done or threatened.
Mr Tampi who appeared for the respondents submitted that the applicant has failed to establish (a) in that there has been no proof of a violation of a right. He argued that the applicant has no legitimate expectation that his indefinite residence permit would not or never be cancelled.
Mr. Kuny who appeared for the applicant referred me to the case of Everett v. Minister of Interior, 1981 (2) S.A. 453 in which Fagan, J. quoted with approval the words of Lord Denning, MR in the case of Schmidt and another v. The Secretary of State for Home Affairs (1969) All E.R. 904 at 9081-909F and said:
8
"To my mind, the distinction drawn by Lord Donning between the position of an alien wishing to enter the country or one in the country whose permitted time has expired, and an alien who had received permission to remain in the country for a period of time which period it is sought to curtail, is a sound one. An alien wishing to enter the country has no rights in that regard. A passport control officer to whom he applies for a temporary permit in terms of s. 5 (1) is entitled to refuse him entry in the officer's absolute and unfettered discretion. The alien has no right to put his case to the officer. And, when an alien is allowed into the country on a temporary permit for a limited time, he acquires no right to stay here for longer then the period granted to him. On the expiry of that time, he is again in the position he was in when he sought entry into the country in the first instance. Widgery LJ. in the Schmidt case, aptly equated the position of an alien who had entered on a permit for a limited period to that of a man who takes the lease of a house for three months and wishes to renew it for a further period. The landlord can reject his
application for an extension out of hand. No question of natural justice arises because there is no right in the tenant that can be infringed. But the position is different when an alien has been allowed into the country under a permit for a period and, before the expiration of that period, the alien is ordered to leave the country. I respectfully share the views expressed by Lord Denning, which I have quoted, in his judgment in the Schmidt case, a judgment with which Widgery LJ concurred, that such an alien has acquired a right consisting of a legitimate expectation of being allowed to stay for the permitted time."
Fagan, J. came to the conclusion that the discretion granted to the Minister in terms of section 8 (2) would thus appear to be quasi-judicial one. He held that it is then implied that the Legislature intended that the Minister should apply the audi alteram partem rule unless the clear intention of Parliament negatives and excludes the implication.
The section with which the learned judge was dealing is similar to our section 10 (2) which deals with cancellation of temporary permits but the principle is the same or even more stronger when one is dealing with the rights of a holder of an indefinite
9
residence permit. Section 10 (1) of our Aliens Control Act
1966 reads as follows:-
"If an indefinite permit has been issued on an application which contains any incorrect information, or if the holder of such permit or his agent has furnished any incorrect information in connection with that application, or if the. holder of such a permit, in the opinion of the Minister formed in accordance with the principles set out in the First Schedule, should no longer sojourn in Lesotho, the Minister may direct that a notice in writing be addressed to the holder of the permit, whereby that permit is cancelled and whereby he is ordered to leave Lesotho within a period stated in the notice and upon the expiration of that period that permit shall become null and void and that person's presence in Lesotho shall thereupon become and be unlawful for the purposes of Part IV, which relates to the expulsion of aliens."
According to the principles enunciated in Everett's case (supra) the applicant in the present case has acquired a right consisting of a legitimate expectation of being allowed to stay in Lesotho for an indefinite period. It is therefore clear that the 1st respondent's discretion in terms of section 10 (1) is a quasi-judicial one. He would first of all have to determine that the applicant is a holder of an indefinite permit issued in terms of section 6 of the Act. He would have to determine whether grounds exist for the cancellation of the indefinite permit. He would finally have to consider the circumstances to decide within what period the permit holder should leave the country. The enquiry will obviously involve the question of fact and law and it will also obivously affect the rights of the applicant. For the above reasons it was necessary that the applicant should be given time to make representation to the 1st respondent in order to persuade him not to cancel his indefinite permit or if the permit had already been cancelled: to try to persuade him to change his mind.
10
Relying on the decision in Bill v. State President and others, 1987 (1) S.A. 265 Mr. Kuny argued that the applicant was entitled to be furnished with reasons why his permit was being cancelled. He required the reasons so that he could be in a position to make meaningful representations to the 1st respondent.
In Heather dale Farms (Pty) Ltd. and others v. Deputy Minister of Agriculture and another 1980 (3) S.A. 476 (T), Colman, J said the following (at p. 486 D-G):
"It is clear on the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing, or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents. But on the other hand (and for this no authority is needed) a mere pretence of giving the person concerned a hearing would clearly not be a compliance with the Rule___ What would follow...... is, firstly, that the person concerned must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representations; secondly, he must be put in possession of such information as will render his right to make repren-tations a real, and not an illusory one."
I entirely agree with the learned Judge's statement of the law but when the safety and security of the State is involved the Minister may decline to disclose the reasons upon which he based his decision to cancel the permit if he is of the opinion that that might be injurious to the safety and security of the State. In the case of Smith v. Minister of Interior and others 1974-75 L.L.R. 358 Isaacs held that the court could not enquire into the reasons why information is privileged when a Minister of State testifies on oath that the information is privileged in the public interest. I agree with the
11
learned judge.
It is true that in the letter Annexure GF2 the 1st respondent did not disclose the reasons why he had decided to cancel applicant's permit. In Annexure GF4 the 1st respondent indicated that "in arriving at the said decision the Minister had taken into account the principles of the First Schedule to the Aliens Control Act especially those set out in paragraph (3)." In paragraph 4 of the letter the Director of Immigration stated that he had been directed to inform the applicant that the grounds upon which the 1st respondent formed his opinion could not be disclosed on the ground that:
"its (sic) disclosure would adversely affect the public safety and the security of the Kingdom of Lesotho."
I agree with the submission that paragraph 3 of the First Schedule to the Act refers to a number of principles in sub-paragraph (i), (iii) and (iv) and that the applicant did not know exactly which principle the 1st respondent took into account. The letter ought to have been more precise about the sub-paragraph, but the last two lines of Annexure GF4 gave the applicant a clear picture that the Honourable Minister of Interior formed his opinion in accordance with the principles set out in paragraph 3 (iv) of the First Schedule to the Act. At least on the 27th September, 1988 when the applicant received Annexure GF4 ho knew that the allegations against him were that his continued sojourn in Lesotho would not benefit Lesotho but would adversely affect the interests of public safety, and the security of the Kingdom of Lesotho.
12
I am of the opinion that the applicant had some information on which he could make representations to the 1st respondent in an attempt to persuade him to change his mind. The information he had at that stage was all that the 1st respondent was prepared to disclose.
The applicant knows what things he has done or he has not done regarding the public safety and the security of this country. In my view he could easily have made representations by denying that he has ever been engaged in any activity or activities which were injuries to the public safety and the security of Lesotho. He was invited on the 27th September, 1988 to make whatever representations he had in mind to the Honourable Minister of Interior not later than the 28th September, 1988. He did not do so.
The applicant has not disclosed the time when he received Annexure GF4 but what is clear is that he had the whole day on the 28th September, 1988 to make representations to the 1st respondent, instead of approaching the 1st respondent he decided to bring this application. He contends in his affidavits that he has very extensive business interests which he could not wind up within such a short period and that he could not dismantle his entire life in this country within twenty days, i.e. from the 12th September to the 2nd October, 1988.
This brings me to the question whether the applicant was given a reasonable time within which to make representation to the 1st
respondent. The applicant knew on the 12th September, 1988 that his residence permit had been cancelled. Although he was not given any
13
indication as to what he had been accused of he must have taken stock of himself during the period from the 12th September when he received Annexure GF2 and the 27th September, 1988 when he received Annexure GF4 which informed him of the outline of what the allegations against him were; he was therefore in a position to make representations to the 1st respondent at once. As I said earlier in this judgment the application knows what things he has done or he has not done which could endanger the public safety and the security of the Kingdom of Lesotho and does not require a week or a month to appear before the 1st respondent to deny any allegations which implicate him.
The present case can be distinguished from Everett's case (supra) whose facts were that the applicant had received a notice at 4 p.m. on the 10th June, 1980. She was given until midnight of the following day to leave South Africa. She made several attempts to contact the Minister through his Secretary from 4 p.m. and at 4.30 p.m. on the 10th June and on the morning of the 11th June, but failed. She was expected to leave Cape Town at 1.20 p.m. in order to catch a flight to London in Johannesburg at 6 p.m. or 6.45 p.m. The period within which she had been given the chance to make representations to the Minister was from 4 p.m. on the 10th Juno to 1.20 p.m. on the following day. She made several attempts to make an appointment with the Minister but failed. The court granted her an interdict.
In the present case the final notice was received by the applicant on the 27th September, 1988 and that must have been before 4.30 p.m. when most offices in Maseru close. He did not make any attempt to contact the 1st respondent whose offices are in Maseru. On the following morning he still made no attempt to get in touch with the 1st respondent but decided to launch this application for an
interdict.
14
The applicant knows what things he has done or he has not done regarding the public safety and the security of this country. In my view he could easily have made representations by denying that he has ever been engaged in any activity or activities which were injuries to the public safety and the security of Lesotho. He was invited on the 27th September. 1988 to make whatever representations he had in mind to the Honourable Minister of Interior not later than the 28th September, 1988. He did not do so.
15
The present case can be distinguished from Everett's cast* (supra) whose facts were that the applicant had received a notice at 4 p.m. on the 10th June, 1980. She was given until midnight of the following day to leave South Africa. She made several attempts to contact the Minister through his Secretary from 4 p.m. and at 4.30 p.m. on the 10th June and on the morning of the 11th June, but failed. She was expected to leave Cape Town at 1.20 p.m. in order to catch a flight to London in Johannesburg at 6 p.m. or 6.45 p.m. The period within which she had been given the chance to make representations to the Minister was from 4 p.m. on the 10th Juno to 1.20 p.m. on the following day. She made several attempts to make an appointment with the Minister but failed. The court granted her an interdict.
In the present case the final notice was received by the applicant on the 27th September, 1988 and that must have been before 4.30 p.m. when most offices in Maseru close. He did not make any attempt to contact the 1st respondent whose offices are in Maseru. On the following morning he still made no attempt to got in touch with the 1st respondent but decided to launch this application for an interdict.
16
I have come to the conclusion that the applicant was given enough time to be heard but failed to take the opportunity to do so. So the argument that the 1st respondent failed to apply the audi alteram partem rule must fail. In Everett's case (supra) Fagan, J. had this to say at page 4580-E:
"The more usual application of the rule in quasi-judicial decisions is for hearing to take place, or representations to be
received prior to the decision being arrived at. But that is not always the position. Where expedition is required, it might be
necessary not to give the affected person the opportunity of presenting his case prior to the decision, but only after. He thus
obtain the opportunity of persuading the official to change his mind."
I fail to understand the applicant's allegation that he intends to contest the cancellation of his permit by the 1st respondent but that there is very little time available to him to do so. The applicant knew as early as the 12th September, 1988 that his permit was cancelled. On the 27th September, 1988 he was informed of the reasons in a very broad outine. He had the 28th, 29th and 30th September to bring the application in which he intends to contest the cancellation of his permit. He did not do so yet he had . three full days at his disposal. The 1st respondent has alleged that in bringing the application for an interdict the applicant is playing for time and intends to defeat the order that he must leave this country by the 2nd October, 1988. I entirely agree with that allegation because the applicant had sufficient time to bring his substantive application to challenge the cancellation of his permit.
In the result the application is dismissed with costs.
J.L. KHEOLA
JUDGE
7th October, 1988.
17
On 7th October, 1988 Ruling on the stay of execution of judgment:- Immediately after the judgment was delivered Mr. Kuny informed the Court that he had instructions to note an appeal in case the application was refused. He submitted that if the judgment was
executed the applicant will suffer irreparable harm because the 1st respondent would immediately expel him out of this country and the appeal, if upheld by the Court of Appeal, would he of no benefit to the applicant.
On the other hand Mr. Tampi submitted that the applicant has no prospects of success on appeal and moved that the application should be refused.
In the main application for an interdict against the 1st respondent to restrain him from expelling the applicant I came to the conclusion
that the applicant had been given enough time to make representations to the 1st respondent but declined to do so. I also held that he had sufficient time to launch his application to contest the cancellation of his indefinite residence permit, instead he elected to bring an application for an interdict. I found that ho was playing for time in order to defeat the 1st respondent's order of cancellation of the permit.
In coming to this conclusion I was well aware of the important role played by the applicant in the economy of this country in that his businesses employ about five hundred Basotho. There is no doubt in my mind that even the Government was aware of this important role or contribution the applicant is making to the economy of the Kingdom of Lesotho, however it was decided that he must leave
18
the country because his continued stay in Lesotho was injurious to the public interest and state security. In other words, when the Government balanced his contribution to the economy of this country and the public interest and the security of the country, they decided that the applicant must leave.
The onus was on the applicant to show the Court that in the exercise of his discretion in terms of section 10 (i) of the Act, the 1st respondent did not act in good faith. In Smith v. Minister of Interior and others, 1974-75 L.L.R. 358 at page 365 Isaacs, A.J. said:
"The onus to show mala fides is on the applicant. In my opinion mala fides is not shown on the evidence before me. I cannot, in my opinion, speculate as to the reasons for the Minister acting as he did in cancelling the permit on 22nd November, 1974, nor whether the cancellation was withdrawn either as a result of the court proceedings or on any other ground. Furthermore there may have been good reasons for the sending of the letter of 15th May, 1975 or the Minister may have had information on which he bona fide believed it would be in the public interest to cancel the applicant's permit. Even if the information was wrong and the court was given evidence that it was wrong, the court could not, in my opinion, overrule the Minister's decision merely on that ground (see section 40 of the Act). Furthermore I cannot say the Minister did not consider the representations made on behalf of the applicant, assuming he was obliged to do so. He has pleaded privilege and State security for his refusal to give the information on which he based his decision and in my view the court cannot say his reasons for the refusal are not correct. I cannot therefore find that on the evidence before me the Minister did not act bona fide."
In the present case there is no evidence before me to show that the 1st respondent did not act bona fide in the exercise of his discretion. He has declined to divulge the information on which he relied when he made his decision on the ground that it would not be
19
in the interest of public safety and the security of the State. It seems to me that no court of law can compel disclosure of such information as long as there is no evidence that the 1st respondent acted mala fide.
In R. v. Lewis Justices Ex parte Home Secretary (1973) A.C. 388 at p. 400 Lord Reid said:-
"The ground put forward has been said to be Crown privilege. I think that that expression is wrong and may be misleading. There is no question of any privilege in any ordinary sense of the word. The real question is whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence. A Minister of the Crown is always an appropriate and often the most appropriate person to assert this public interest, and the evidence or advice which he gives to the court is always valuable and may sometimes be indispensable. But in my view, it must always be open to any person interested to raise the question and there may be cases where the trial judge should himself raise the question if no-one else has done so."
I agree with the remarkds of Cotran, A.C.J. in Smith's case (supra) at page 368 that the principle is that no court can presume automatically that its judgment is correct and refuse a stay, and should do so only when it is clear that the appeal has no merit, or is frivolous or vexatious, or its sole purpose is postponement of the evil day. In the present case I have found that the applicant is playing for time and I have come to the conclusion that he has no prospect of success in the appeal.
20
The application for stay of the judgment is refused with costs to the 1st respondent.
10th October, 1988.
For the Applicant - Mr. Kuny
For the Respondents - Mr. Tampi
