The High Court had to determine whether there was any legal basis for suspending the Minister’s order to expel the Applicant’s wife from Lesotho.
There was nothing on the papers to show that when the wife of the applicant entered Lesotho with her South African passport, she had complied with the exemption clause under section 5 of the Aliens Control Act. There was also no evidence that the Applicant had regularised her stay, except by means of an application for the acquisition of Lesotho citizenship by naturalization in terms of section 12 of the Lesotho Citizenship Order 1971.
There was evidence that this application was pending at the time of the Minister’s decision and that the applicant’s wife was not given a hearing before she was expelled. However, there was authority for the proposition that the right to a hearing may be denied to aliens whose permit to reside within Lesotho was taken away or about to be taken away, at the discretion afforded to the Minister, and that this was a purely administrative function, not a quasi-judicial one. A review could only be done if the Applicant could establish that the Minister had acted in bad faith, which had not been done.
The court left open the question of whether an executive act that has the result of separating a husband from his wife was an infringement of the Human Rights Act of 1983, which was yet to come into force.
Naturalization; Administrative action; Identity documents ; Alien
The applicant was a Lesotho citizen and made this application on behalf of his wife, who was South African. They were married by custom and had lived together until the wife was expelled by an order of the Minister of the Interior as per section 25 of the Aliens Control Act. She was expelled to South Africa, but wanted to return to Lesotho. The applicant made an application to the High Court for an order seeking to suspend the decision of the Minister pending the bringing of an action to prove that his wife was bona fide within Lesotho. The Respondents, the Solicitor General and the Commissioner of Police, opposed the application.
The Application was dismissed.
Under the Aliens Control Act, the Minister had discretion to revoke, vary, suspend or reinstate any order, and the law did not provide for an appeal or review of the Minister’s decision except in cases of bad faith.