The Judge outlined three main issues up for dispute. The first was whether the decision by the Minister to nullify the passport was unlawful. The second was whether or not the applicant should have been afforded a hearing before the decision was taken and lastly, whether the memo issued to all Ports to refuse the applicant entry into Lesotho was unlawful.
With respect to the first issue, there was no authority to guide the presiding officer and as such, a purposive interpretation was used to infer that the Minister was justified on nullifying the passport as he had the power to order its surrender.
On the second issue, as the Minister was found to have inferred discretion on the decision which had been taken, the Judge found that the Applicant was not entitled to a hearing in this particular instance. However, in relation to the final issue, it was found that the respondents were acting capriciously. They were thus restrained and interdicted from denying the applicant re-entry into the country as a refugee in order to deal with the issues in accordance with the law. On the third issue, the court held that the memo was unlawful because even if the Applicant was in the country illegally, he could not be expelled lawfully until he could lawfully be admitted into another country.
Alienage; Administrative Justice; Travel Documents; Naturalisation
The applicant made an application on an urgent basis seeking to set aside the decision, made by the Minister, of declaring his passport null and void as unlawful. The applicant is bearer of a Lesotho passport which was issued to him and has been the subject of nullification with immediate effect. Communication of this nullification was made promptly and in person, at the port of entry, without the applicant being afforded the opportunity of a hearing. The Respondents argued that the Applicant had acquired the passport on the basis of a misrepresentation by him to the Director of Immigration regarding his status. As a result, when the applicant attempted to cross back into Lesotho from South Africa, his passport was rejected. The basis thereof was that the respondents believed that the applicant obtained the said passport on misrepresentation made by him in a letter directed to the Director of Immigration.
It was found that the Minister, despite no clear empowering provision, was afforded the discretion to make the decision to declare the passport invalid. However, the Applicant should be allowed access back in Lesotho so that the issue of expulsion could be dealt with accordingly with the law.
The Minister is afforded discretion to nullify passports as per a purposive interpretation of the Refugees Act. The court argued that powers are not conferred in the abstract but are intended to serve a particular purpose, and in the absence of a specific section that deals with this situation, the Minister was justified in resorting to section 7 of the Refugees Act.