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# South Africa: South Gauteng High Court, Johannesburg [![Support
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ZAGPJHC 20**

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##  Lagardien and Others v Minister of Home Affairs and Others (2025/432)
[2025] ZAGPJHC 20 (21 January 2025)

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**IN THE HIGH COURT OF SOUTH AFRICA**

**(GAUTENG LOCAL DIVISION, JOHANNESBURG)**



(1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED.
SIGNATURE     DATE: 21 January 2025  
---  
  


Case No. 2025-432



In the matter between:



**LAMEEZ LAGARDIE** |  First Applicant   
  
---|---  
**DAVID QUIRKE** |  Second Applicant   
  
**JOHN STEPHEN CLIFFORD** |  Third Applicant   
  
and |    
  
  
**MINISTER FOR HOME AFFAIRS** |  First Respondent   
  
**DIRECTOR-GENERAL: DEPARTMENT FOR** **HOME AFFAIRS** |  Second Respondent   
  
  
**ALL IMMIGRATION OFFICERS ON DUTY AT** **OR TAMBO INTERNATIONAL AIRPORT** |  Third Respondents  
  
  

#####  JUDGMENT



_**WILSON J:**_



1  The second and third applicants, Mr. Quirke and Mr. Clifford, are Irish
nationals. They each applied to the South African Embassy in Dublin for a
multiple entry visa under [section
11](http://www.saflii.org/za/legis/consol_act/ia2002138/index.html#s11) (2) of
the [Immigration Act 13 of
2002](http://www.saflii.org/za/legis/consol_act/ia2002138/). The Embassy
issued visas to both Mr. Quirke and Mr. Clifford on 30 October 2024. The visas
were set to expire on 1 February 2025. Mr. Clifford and Mr. Quirke travelled
to, and were permitted to enter, South Africa on 7 November 2024. The purpose
of their visit was to train South Africans working at the Gqeberha seaport in
the construction of large cranes used to load and offload shipping containers.



2  Mr. Quirke and Mr. Clifford left South Africa on 19 December 2024, to
return to Ireland for the Christmas holidays. On 4 January 2025, the two men
flew back to Johannesburg, but immigration officials at the OR Tambo
International Airport refused to clear them for entry into South Africa. They
were held at the airport pending deportation to the Republic of Ireland.



3  On the morning of Sunday 5 January 2025, the first applicant, Ms.
Lagardien, acting on behalf of Mr. Quirke and Mr. Clifford, applied to me for
an order releasing both men from detention. Exercising my well-known common
law powers to enquire into the lawfulness of the detention of any person
within my jurisdiction (see, for example, _Principal Immigration Officer v
Narayansamy_ , [1916 TPD 274](/cgi-bin/LawCite?cit=1916%20TPD%20274 "View
LawCiteRecord") at 276, _Ganyile v Minister of Police_ [1962 (1) SA 647](/cgi-
bin/LawCite?cit=1962%20%281%29%20SA%20647 "View LawCiteRecord") (E) at 654 and
_Arse v Minister of Home Affairs_ [2012 (4) SA 544](/cgi-
bin/LawCite?cit=2012%20%284%29%20SA%20544 "View LawCiteRecord") (SCA) at
paragraphs 5 and 10),  I ordered that Mr. Quirke and Mr. Clifford be released
to present themselves in my urgent court at 10am on Monday 6 January 2025.



4  On that day, Mr. Nelani, who appeared for the respondents, was unable to
dispute that Mr. Quirke and Mr. Clifford had, on the face of it, each arrived
in South Africa on a valid multiple entry visa, which they had used at least
once before to enter the country lawfully. Mr. Nelani nonetheless assured me
that his instructions were that the visas were "fraudulent", and were as a
result not valid for travel. Mr. Nelani was unable, however, to present any
evidence of this.



5  At that stage, Mr. Quirke and Mr. Clifford were scheduled to leave South
Africa on or shortly before 31 January 2025. Accordingly, I postponed their
application to 20 January 2025 in order to allow the respondents to file an
answering affidavit. I ordered that Mr. Quirke and Mr. Clifford be released
from detention, that they not be deported, and that their visas be treated as
valid pending that date.



6  On 14 January 2025, the first respondent, the Minister, deposed to an
affidavit in opposition to the application. His affidavit did not really
address the fact that Mr. Quirke and Mr. Clifford both arrived at the airport
with valid multiple entry visas that would have allowed them to remain in
South Africa until 1 February 2025. It was instead alleged that two other
visas, purporting to extend the multiple entry visas issued in Dublin, had
been fraudulently issued to the two men. It was the inauthenticity of these
visas that led to Mr. Quirke's and Mr. Clifford's detention, and to the
decision to deport them.



7  Attached to the Minister's affidavit was a letter from the South African
Embassy in Dublin. That letter confirmed the validity of the visas issued on
30 October 2024. However, the letter alleged that the extensions to these
visas were not issued in Dublin and are "fake".



8  The Minister also alleged that Mr. Quirke and Mr. Clifford were never
detained by the respondents, but were rather placed in the custody of the
airline that conveyed them to South Africa. This strikes me as far-fetched,
and Mr. Nelani conceded that, had Mr. Quirke and Mr. Clifford attempted to
leave the airport, immigration officials would have prevented them from doing
so. That concession having been made, there is no serious dispute that Mr.
Quirke and Mr Clifford were in fact detained by the respondents at the
airport.



9  It appears to be common cause that both the valid original visas, and the
allegedly "fake" extensions, were inserted into Mr. Quirke's and Mr.
Clifford's passports. It appears that the decision to detain and deport the
two men was taken on the basis that the extensions were "fake", but without
having any regard to the fact that the original visas were valid, and would
remain valid until 1 February 2025.



10  In their replying affidavit, Mr. Quirke and Mr. Clifford allege that the
extension visas had been obtained for them by those responsible for the
training project in which they were participating. They say that they had no
reason to believe that they were inauthentic, but they accept that, equally,
they have no basis on which to contest the Minister's version that the visas
are "fake". Beyond that, neither party deals in any detail with how the
extension visas were obtained. Indeed, neither party placed the extension
visas before me.



11  Perhaps accepting that discretion is the better part of valour, and
fearful of prosecution for relying on the apparently "fake" visa extensions,
Mr. Quirke and Mr. Clifford have now decided to leave South Africa, and to
take up the issue of their immigration status from there. The respondents
apparently permitted the two men to exit South Africa under their own steam on
19 January 2025\.



12  For these reasons, by the time the matter was called before me on 20
January 2025, Mr. Quirke and Mr. Clifford had left the jurisdiction, and the
merits of their application had become moot. Mr. Nelani and Mr. Simpson, who
appeared for the applicants, presented me with an agreed draft order. The
draft had two clauses. The first clause stated that "The application is
withdrawn". The second clause provided for the applicants to pay the
respondents' costs on the party and party scale.



13  An order that an "application is withdrawn" is neither competent nor
proper. Courts do not order litigants to withdraw applications. The withdrawal
of an application is a unilateral act which may or may not be accompanied by a
tender for costs.



14  This was, in substance, what Mr. Simpson told me the applicants wished to
do: withdraw the application and tender the respondents' costs. Ultimately,
however, Mr. Simpson said that he was content to leave the question of costs
in my discretion. For his part, Mr. Nelani pressed for a costs order on two
bases: first that the applicants had previously agreed to pay costs, and
second that the application should never have been brought, given the
invalidity of the extension visas.



15  I reject the first submission. It is well established that courts are not
bound by extra-curial agreements to pay costs, and that costs remain in the
discretion of the court hearing the matter. While a court will normally give
effect to a contract to pay costs freely entered into, it may, in the exercise
of its discretion, and having regard to the nature of the litigation before
it, decide to award costs on a scale other than the scale agreed between the
parties, or to award no costs at all (_Intercontinental Exports (Pty) Ltd v
Fowles_ [1999 (2) SA 1045](/cgi-bin/LawCite?cit=1999%20%282%29%20SA%201045
"View LawCiteRecord") (SCA), paragraphs 25 and 26).



16  The decisions of the Supreme Court of Appeal and the Constitutional Court
in _Road Accident Fund v Taylor_ [2023 (5) SA 147](/cgi-
bin/LawCite?cit=2023%20%285%29%20SA%20147 "View LawCiteRecord") (SCA)
("_Taylor_ ") and _Mafisa v Road Accident Fund_ [2024 (4) SA 426](/cgi-
bin/LawCite?cit=2024%20%284%29%20SA%20426 "View LawCiteRecord") (CC)
("_Mafisa_ ") do not alter this position, since they address only the question
of whether a court is entitled to interfere with the terms of an agreement
settling the "merits" of a dispute (see _Mafisa_ , paragraph 42 and _Taylor_ ,
paragraph 51). Neither _Mafisa_ nor _Taylor_ fetter a court's discretion to
award costs as it sees fit, even if the parties have agreed that a particular
costs order should be made.



17  Still, a court's costs discretion must be exercised judiciously, with the
position generally being that costs should follow the result. Where a court
decides that costs should not follow the result, it should give reasons for
that conclusion.



18  I do not think it is just or fair to order costs against Mr. Quirke and
Mr. Clifford merely for questioning the basis of their detention, in
circumstances where they both arrived in South Africa in possession of a valid
multiple entry visa, and it has not been established that they had any notion
that the visa extensions in their passports might have been inauthentic.
Indeed, on the facts of this case, it seems absurd to suggest that the two men
would have knowingly allowed inauthentic visas to be put into their passports
in circumstances where everyone accepts that they each had a perfectly valid
multiple entry visa that would have allowed them entry to South Africa when
they presented themselves at the immigration kiosk.



19   Accordingly I order that  -

19.1   The interim interdict contained in paragraph 3 of this court's order
dated 6 January 2025 is discharged.

19.2  Each party will pay their own costs.



**S D J WILSON**

Judge of the High Court



This judgment is handed down electronically by circulation to the parties or
their legal representatives by email, by uploading it to the electronic file
of this matter on Caselines, and by publication of the judgment to the South
African Legal Information Institute. The date for hand-down is deemed to be 21
January 2025.



HEARD ON:  |  6 and 20 January 2025   
  
---|---  
DECIDED ON: |  21 January 2025   
  
For the Applicants:  |  J Simpson Instructed by Simpson Inc   
  
For the Respondents: |  S Nelani Instructed by the State Attorney  
  
  

  

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