A discussion of Ngiriyabandi v Border Management Authority of South Africa (2025)

Written by Roy Bregman, admitted attorney with over 51 years’ experience in administrative and immigration law. Learn more at: https://bregmans.co.za/about-us/biography-of-roy-bregman/

Introduction: When Administrative Law and Immigration Collide

South African immigration law is primarily governed by the Immigration Act 13 of 2002, which empowers immigration officers to refuse entry to foreign nationals under specific conditions. However, what happens when such a decision is challenged not through a formal review but via an urgent court application?

The recent case of Ngiriyabandi v Border Management Authority of South Africa and Others [2025] ZAWCHC 222 illustrates a fundamental legal principle: an administrative decision must be reviewed, not interdicted, unless exceptional circumstances exist. This principle is grounded in the Oudekraal doctrine and protects the integrity of administrative processes.

The Legal Context: Review vs Interdict in Administrative Law

Administrative Action and Legal Effect

In administrative law, a decision made by an authorised public official (such as an immigration officer) is presumed valid and enforceable until it is set aside by a competent court. This principle was cemented in the landmark case Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), which held that an invalid administrative act has legal consequences unless reviewed and nullified.

Procedural Pathways in Immigration Matters

Section 8(1) of the Immigration Act provides an internal remedy—an appeal to the Minister of Home Affairs—for foreign nationals who are denied entry into South Africa. Only once this appeal process is exhausted, or where it fails, can an applicant consider a court challenge through judicial review under the Promotion of Administrative Justice Act (PAJA).

Case Summary: Ngiriyabandi’s Failed Bid for Entry

Facts of the Case

• Samson Ngiriyabandi, a 75-year-old Burundian national, arrived at Cape Town International Airport on 28 January 2025.
• He was refused entry due to a visa condition requiring entry by 26 January.
• On the same day, his attorneys filed an internal appeal under section 8(1).
• While the appeal was pending, he sought urgent court relief without notifying the respondents.

Legal Arguments and Court’s Reasoning

• The respondents argued the applicant sought a final interdict disguised as interim relief without launching a proper review.
• The court held it could not set aside the decision via interdict.
• The applicant misled the court by omitting the pending internal appeal.
• Substitution relief was sought without pleading exceptional circumstances.

The Court’s Conclusion

Justice Nuku dismissed the application with costs, stating the case “never got off from the starting block” due to procedural flaws.

Key Legal Takeaways

1. Administrative Decisions Require Review, Not Interdict

Courts will not entertain an interdict to set aside an administrative act unless a proper review is launched under PAJA.

2. Full Disclosure is Crucial

Legal practitioners must disclose all relevant facts, particularly any ongoing internal remedies.

3. Substitution Orders Are Rare

These are only granted in exceptional cases with clear, uncontested facts.

Conclusion: Procedure Matters in Immigration Litigation

This case underscores the importance of following the correct legal channels when challenging immigration decisions. Courts require proper review processes and will not tolerate attempts to circumvent them.

Frequently Asked Questions (FAQs)

• Can a visa refusal be challenged in South Africa?
  Yes, through an internal appeal under section 8(1) of the Immigration Act, followed by judicial review under PAJA.

• What is the Oudekraal principle?

It holds that an administrative decision remains valid until set aside by a competent court.

• Can a court allow someone to stay in South Africa without setting aside a visa decision?

Only in exceptional circumstances. Usually, relief must follow a successful review.

• What’s the difference between a review and an interdict?
  A review challenges the legality of a decision; an interdict seeks to temporarily prevent an action.