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[2016] ZAWCHC 177
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Sweyeli v Minister of Home Affairs and Others (1479/16) [2016] ZAWCHC 177 (30 November 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number: 1479/16
In the
matter between:
WANDY
ALNOD
SWELEYI
Applicant
and
THE
MINISTER OF HOME AFFAIRS
First
Respondent
THE
DIRECTOR-GENERAL OF HOME
AFFAIRS
Second
Respondent
THE
CHIEF DIRECTOR:
PERMITS
Third
Respondent
Delivered:
30 November 2016
JUDGMENT
BOQWANA, J
Introduction
[1]
The applicant is a Malawian citizen who came to South Africa
on an asylum seeker permit. This permit was endorsed to allow him to
take up employment. During the period of 2003/2004 he started working
for Advocate John Dickerson SC’s household as a gardener
where
he met and established a bond with Adv. Dickerson’s son,
Alistair, who was born with cerebral palsy on 28 November
1993.
Alistair was nine years old when he met the applicant. Shortly
thereafter, he was employed by Adv. Dickerson as Alistair’s
full time care-giver. The applicant applied for a general work permit
which was granted on 22 February 2011. This permit enabled
him to
continue taking care of Alistair and contribute to his educational,
social and emotional well-being. He also assisted Alistair’s
father, as his employer. This permit was valid for a period of five
years and was due to expire on 18 February 2016. The applicant’s
passport got stolen in 2014 and the Department of Home Affairs (‘the
Department’) issued him with a new general work
visa on 1
December 2014 on the same conditions and expiry period as the one
issued in February 2011.
[2]
In support of his first application for a general work permit
which was evidently successful, the applicant placed before the
second
respondent reports prepared by Dr Harold Weber, Alistair’s
family doctor and Mr Larry Loebenstein, his psychologist. The
applicant contends that his application was successful based on the
strength of these reports. It is appropriate to quote
some key
passages from these reports as they are directly relevant to the
application that followed prior to 18 February 2016,
to which I shall
return. In his report, prepared when Alistair had just turned 17
years old, Dr Weber recorded,
inter alia
, the following:
‘…
He [Alistair] is unable to
walk unaided and only for a short distance of a few meters with
crutches, is unable to receive formal
schooling and receives
rudimentary training in a special needs unit attached to St Josephs
School.
As a result of these deficits, Alistair is unable to
care for himself, and due to his size, no female caregiver will be
able to
cope.
Mr. Sweleyi attends to his daily needs, cooks for him,
and assists with ablutions and his clothing.
These functions require considerable knowledge and
experience of the needs of the person, and required extensive
training. It would
be extremely disruptive if Mr. Sweleyi was
replaced or prevented from continuing in his present role, as a bond
have been forged
between caregiver and child.
It is therefore in Alistair’s interest (both
physical and psychological) that Mr. Sweleyi be allowed to continue
in his present
role, and the present support and care system would be
severely disrupted by the process of engaging a replacement and
training
them to deal with Alistair’s particular physical and
psychological needs.
Mr Sweleyi has shown that he is an empathetic,
knowledgeable and very dedicated caregiver that has bonded well with
Alistair, and
replacing him would not be in Alistair’s best
interest.’
[3]
Mr Loebenstein supported Dr Weber’s report. He further
stated that:
‘ …
Alistair does not describe Wandi
Sweleyi as being a caregiver, but as his best friend. He explains
this by stating that they have
a rapport, an understanding of each
other and that Wandi Sweleyi is intuitive to his needs. Wandi Sweleyi
is of assistance with
tasks that Alistair finds difficult to do
independently, but he is (sic) also encourages him to accomplish
tasks of his own volition.
Of specific concern is Alistair’s appreciation
about falling due to his grossly impaired gait and he knows that
Wandi Sweleyi
is always in close attendance when he attempts to
mobilise himself independently. His praise for Wandi Sweleyi extends
to a sentiment
that no caretaker replacement could ever be his best
friend and he wishes that Wandi Sweleyi could be domiciled in his
home on
a continuous basis.
The consultation with Mr Wandi Sweleyi confirmed that he
assists Alistair in many ways. He is particularly attentive to
Alistair’s
attempts at independent mobility as it is impossible
for Alistair to stand up without assistance due to his inordinately
compromised
motor functioning. He thus anticipates Alistair’s
needs and ensures that all his routines are adhered to.
Having a secure, predictable and comforting home
environment with the assistance of a person with Wandi Sweleyi’s
attitude
and capabilities has allowed Alistair to advance his
academic and social skills at school.
It is my firm opinion that should this particular
relationship be broken that this would impact adversely on Alistair’s
recent
academic, social and emotional wellbeing.’
[4]
It is alleged that prior to the applicant’s employment,
Alistair had been cared for by a number of care-givers, none of whom
were suitable or remained for a significant duration in their
employment. This was allegedly disruptive for both Alistair and Adv.
Dickerson, who is responsible for his care.
[5]
The applicant alleges that, Alistair who is now 22 years old
has made progress in terms of his personal functioning beyond the
expectations
of his family. Alistair allegedly attributes his present
increased independence to on-going commitment, intervention, as well
as
the applicant’s support and anticipation of his needs.
Although Alistair is now an adult, he continues to require
assistance.
Both Alistair and Adv. Dickerson require the applicant to
continue with their employment relationship for as long as Alistair
requires
it. He would be severely affected if the
applicant was forced to leave his employment. The applicant alleges
that it
is on the basis of his skills and experience that Adv.
Dickerson wishes to continue employing him.
[6]
During May 2014, new Immigration Regulations (‘the
Regulations’) in terms of s 7 of the Immigration Act, 13 of
2002
(‘the Act’) were introduced. The relevant Regulation
for the purposes of this case is Regulation 18 (3) (a) (‘the
Regulation’), which provides as follows:
‘
Work Visa
18 …
(3) An application for a general work visa
shall
be accompanied by –
(a)
a certificate from the Department of Labour
confirming that –
(i)
despite a diligent search, the prospective employer
has been unable to find a suitable citizen or permanent resident with
qualifications
or skills and experience equivalent to those of the
applicant
;
(ii)
the applicant has qualifications or proven skills and
experience in line with the job offer;
(iii)
the salary and benefits of the applicant are not inferior to
the average salary and benefits of citizens or permanent
residents
occupying similar positions in the Republic; and
(iv)
the contract of employment stipulating the conditions of employment
and signed by both the employer and the applicant
is in line with the
labour standards in the Republic and is made conditional upon the
general work visa being approved;
(b) proof of qualifications evaluated by
SAQA and translated by sworn translator into one of the official
languages
of the Republic;
(c) full particulars of the employer, including, where
applicable, proof of registration of the business with the Commission
on
Intellectual Property and Companies (CIPC);
(d) an undertaking by the employer to inform the
Director-General should the applicant not comply with the provisions
of the
Act or conditions of the visa; and
(e) an undertaking by the employer to inform the
Director-General upon the employee no longer being in the employ of
such
employer or when he or she is employed in a different capacity
or role.’
[7]
On 17 August 2015 and prior to the expiry of his general work
visa (which was to be on 18 January 2016), the applicant brought an
application to the first respondent, through his attorneys, for an
exemption from the Regulation in terms of s 31 (2) (c) of the
Act.
Section 31 (2) (c) states that:
‘
31 Exemptions
(2)
Upon application, the Minister may under terms and
conditions determined by him or her –
(c) for good cause, waive any prescribed requirement or
form’
[8]
The basis of the application was that the
applicant had been employed by Adv. Dickerson for 8 years and
obtained a general work
permit for the first time in February 2011.
Adv. Dickerson wished to continue employing him in the position of a
caregiver based
on his skills and experience. In order to continue
doing so, he required a renewal of the general work visa in terms of
s 19 (2)
of the Act for a period of five calendar years. The
applicant submitted that Adv. Dickerson was not a prospective
employer but
his current employer and therefore,
the
Regulation should not be applicable to him on this basis alone.
Secondly, Adv. Dickerson could not afford to be without the
applicant’s skills and specific knowledge for a period of 4 to
7 months whilst a decision was still being made by the Department
of
Labour as to whether a certificate should be issued. According to the
applicant, that is how much time it took to process these
applications). Thirdly, Alistair who had significant impairment of
his physical and mental abilities resulting from the cerebral
palsy
required care on a daily basis due to his disability and physical
needs, which required considerable knowledge and experience.
It would
be extremely disruptive if the applicant needed to be replaced.
Fourthly, there was no labour market for the applicant
as the
emotional bond between him and Alistair was considerably strong and
impossible to replicate. It was therefore, in Alistair’s
best
interest that the applicant remained his caregiver. Fifthly, the fact
that Alistair’s progress in life and well-being
depends on the
care he receives from the applicant is sufficient to constitute good
cause (in terms of s 31 (2)) and for the reasons
outlined above, the
Regulation ought to be waived. The applicant attached his
curriculum vitae, the 2010 reports from Dr
Weber and Mr Loebenstein
(which I have referred to above), as well as a letter from Adv.
Dickerson and a contract of employment
in support of his application
to the first respondent.
[9]
The Acting Chief Director (Permits), addressed a letter dated
18 January 2016 to the applicant’s attorneys in response to his
application. The letter detailed the decision of the ‘first
respondent’,
inter alia
, as follows:
‘
Having carefully considered the information you
provided in your representation, I regret to inform you that I could
not find any
good cause why a waiver of the requirements as
prescribed in Regulation 18 (3) (a) of the Immigration Regulations
should be granted.
Section 19
(2) of the
Immigration Act, inter
alia,
aims to promote economic growth through the employment of needed
foreign labour which does not adversely impact on existing
labour
standards and rights and expectations of South African workers.
When applying for general work visa, the employer is
obliged to satisfy the Director-General that the employment of a
foreigner
would promote economic growth and would not disadvantage a
South African citizen or permanent resident. Documentary proof, in
the
form of a certification by the Department of Labour, as
prescribed in Regulation 18 (3) (a) of the Immigration Regulations,
must
be submitted as proof that a diligent search was done and that
employer was unable to employ a citizen or permanent resident with
qualifications or skills and experience equivalent to those of the
applicant. The certification by the Department of Labour is
consistent with the provisions of the Employment Services Act which,
inter alia, aims to regulate the employment of foreigners
on local
employment contracts. It is thus an important tool to identify
positions being offered to foreign nationals in the private
and
public sector, to benchmark the duties that they are required to
perform, as well the skills and qualification needed to perform
these
duties, against the curricula vitae of unemployed South African
citizens and permanent residents in the same occupational
category.
Should Adv. Dickerson wish to continue employing Mr
Swaleyi (sic), he will have to obtain the certification from the
Department
of Labour which is necessary to process Mr Swaleyi’s
(sic) general work visa application.’ (Underlined for emphasis)
[10]
The applicant’s attorney received this
letter on 25 January 2016 and launched an urgent application to
review and set aside
the decision refusing the applicant’s
application on 10 February 2016. The applicant further sought the
court to substitute
the decision with its own, alternatively,
remit the matter back to the first respondent for
reconsideration. He further sought the court to direct the second
respondent to
issue a Form 20 document authorising him to remain in
South Africa pending his application for the general work visa by
close of
business 18 February 2016. The matter was postponed to 4 May
2016,
for the filing of the answering affidavit,
replying affidavit and heads of argument. On 4 May 2016 the matter
was again postponed
to 31 May 2016, setting out a timetable for the
filing of further papers. On 31 May 2016 parties once again postponed
the matter
by agreement between themselves to 7 September 2016 with
the respondents consenting to prayer 2 read with prayer 4, (i.e. to
the
review and setting aside of the decision of the respondents and
the remittal of the matter to the respondents for reconsideration).
The parties further agreed that the second respondent be directed to
issue a Form 20 document by close of business 14 June 2016.
This in
order to authorise the applicant to remain in South Africa as
contemplated in s 32 (1) of the Act pending the finalisation
of the
application for review. A further timetable for filing of further
documents was agreed to.
[11]
The applicant persisted with the substitution relief and did
not take up the offer of the reconsideration of the matter made by
the respondents. The respondents filed their answering affidavit,
inter alia
, restating the provisions of the Regulation. It is
important to quote some of the passages of the answering affidavit as
they are
directly relevant to the determination of the issues before
me. The deponent to the answering affidavit, Mr Ronney Marhule
(Acting
Chief Director: Permitting (sic), states,
inter alia
,
the following in the answering affidavit:
‘
8.
Regulation 18 (3) is
couched in peremptory language
. There may be
qualified South African citizens (a permanent resident with
qualifications or skills and experience equivalent to
those of the
applicant) that offer caring services and it will never be known
whether there are such persons that may be suitable
to offer this
particular service, unless a ‘diligent search’ is done,
as is required by Regulation 18 (3).
9.
It is the position of the Department that unless a
‘diligent search’ is made, then there are not enough
facts before
it to make a favourable decision for the Applicant in
terms of Section 31(2)(c) of the Act
. Although, the Applicant has
taken a contrary position, the decision that has been made, is a
reasonable one, namely, that in the
absence of gainsaying evidence
that there are no South African persons (or a permanent resident)
with qualifications or skills
and experience equivalent to those of
the applicant, then the Applicant is not the only person that can
offer the service and therefore
it follows, that the Applicant is not
entitled, as of right, to the work visa that he desires.
The
position would be completely different had the Applicant first
complied with Regulation 18 (3).
10.
In light of the above, the correct process to be
followed would be for the Applicant to comply with Regulation 18 (3)
and thereafter,
the matter should be referred back to (sic) for
reconsideration, as per Prayer 4 of the Notice of Motion
.
11. Pursuant to the position adopted herein above, the
Respondents believe that this matter is not one in which a
substitution order
is warranted.’ (Underlined for emphasis)
[12]
According to the applicant, the stance adopted by
the respondents in the answering affidavit confirms his contention
that the decision
is reviewable and not only that but also that
substitution is the only just and equitable relief in the
circumstances. The applicant
submits that the decision is reviewable
on various grounds. Firstly, as is evident from the letter
articulating the decision, the
first respondent failed to take
relevant consideration into account as he is required to do by s 6
(2) (e) (iii) of the Promotion
of Administrative Justice Act 3 of
2000 (‘PAJA’). Secondly, other than the bald statement
that the decision-maker had
‘
carefully
considered the information you provided in your representation
’
,
there is no indication at all that the applicant’s
representations were in fact considered. Thirdly, it would appear
that
the letter containing the decision is a standard rejection
letter. It does not provide reasons why the first respondent found
that
the applicant failed to show ‘good cause’ for the
waiver of the requirements of Regulation 18 (3) (a). It merely
re-states
the purpose of the Regulation and makes no reference to the
contention that Regulation 18 (3) (a) (i) only applies to new
applications.
Fourthly, the decision appears to rely on the
provisions of the Employment Services Act, which, while it came into
effect in August
2015, the
Regulations
to the Act have yet to be promulgated.
The applicant submits that the first respondent
relied on irrelevant or less relevant information in coming to his
decision, contrary
to the requirement for the administrative action
set out in s 6 (2) (e) (iii) of PAJA. Fifthly, the first respondent’s
decision
was materially influenced by an error of law in that he
failed to appreciate the extent of the discretion afforded him under
s
31 (2) (c) of the Act. It was submitted on behalf of the applicant
by Ms de la Hunt that the document containing the decision
illustrates
that the discretion was narrowly construed to limit its
application to economic interests. Sixthly, the decision was not only
materially
influenced by an error of law but it was not rationally
connected to the purpose of the important provisions, the information
before
the first respondent and the reasons given by the third
respondent on his behalf. Finally, the decision is so unreasonable,
that no reasonable decision-maker would have come to the
conclusion that good cause did not exist for granting the waiver on
the
grounds set out in the applicant’s application.
[13]
As to substitution, the applicant submits that the attitude of
the respondents shows that they have expressed a categoric opinion
and it would be futile to send the matter back for reconsideration.
It is a foregone conclusion that the application should be
granted.
[14]
I first deal with the reviewability of the decision. In the
decision of
Littlewood & Others v Minister of Home Affairs &
Another
2006 (3) SA 474
(SCA) where the first appellant and his
wife discovered that their permanent residence permits endorsed in
their passports were
not authentic, having lived in South Africa for
more than two years and having severed ties with their country of
origin, the Minister
refused an application for an exemption in terms
of s 28 (2) of the Aliens Control Act 96 of 1991. Without valid
permits the appellants’
presence was prohibited in South
Africa. Section 28 (2) of that Act authorised the Minister to exempt
any person from the provisions
of s 23…if the Minister was
satisfied that there were ‘special circumstances’ which
justified his or her decision.
In a letter detailing the Minister’s
decision, drafted by the Department’s officials, it was merely
pointed out,
inter alia
, that possession of a fraudulent
permit was a serious offence and that it was a responsibility of
every visitor in the country
to adhere to the law. The first
appellant was then told that he and his family must make arrangements
to leave South Africa
and lodge a prescribed work permit application
with the South African High Commission in London. The Appeal Court
stated as follows
at paragraphs 16 and 17:
‘
[16] …The application was turned down for
no reason but that the Department of Home Affairs saw the possession
of a fraudulent
permit as a serious offence that had caused a
predicament for which it was not responsible. But that begs the
question whether
the circumstances that had arisen – albeit
that it was not attributable to fault on the part of the department –
constituted
‘special circumstances’ justifying the
granting of an exemption. It is apparent from the reasons advanced in
the letter
that the Minister – on the advice of his officials –
failed to apply his mind to that question at all. (The departmental
memorandum that accompanied the recommendation to the Minister, and
the affidavits that have been filed in these proceedings, take
the
matter no further.)
[17]
The Minister was not
called upon to decide whether his department was at fault but rather
whether ‘special considerations’
existed justifying an
exemption. The effect of his failure to apply his mind to that
question was that he failed altogether to
exercise the discretion
conferred upon him by the Act and his decision must be set aside.’
(Underlined for emphasis)
[15]
Although the facts in the
Littlewood
case are different
from those in the present matter, the findings of the court there are
apposite to the question of whether the
first respondent in this case
applied his mind to the key question of whether good cause existed
justifying an exemption from the
Regulation.
[16]
Although the letter to the applicant’s
attorneys records that no good cause was shown after careful
consideration of the application,
the latter part of the letter
clearly indicates that what occupied the mind of the decision maker
was that the applicant ought
to have complied with the Regulation.
The answering affidavit takes the point further by suggesting that
absent compliance with
the Regulation and more specifically the
certificate by the Department of Labour, there can be no
consideration of the application
for exemption. That, in my view, is
indicative of the fact that the decision maker did not apply his mind
to the question and the
facts before him so as to ascertain whether
any good cause was shown. In my view, the decision maker missed the
point altogether.
The application before him was not whether to grant
the general work permit but whether to grant the applicant a waiver
from a
prescribed requirement when submitting an application for a
general work permit. It is so, that when a general work permit is
considered,
it must be accompanied by a certificate but the
application brought by the applicant was for him to be exempted from
the prescribed
requirement of furnishing a certificate from the
Department of Labour together with his application for the general
work visa.
In that regard, he would have had to show good cause as to
why the prescribed requirement should not apply to him,
or
why he cannot comply with it.
[17]
The application was not rejected because the
circumstances provided as reasons for the request for a waiver did
not show good cause,
it was rejected because the decision maker
clearly saw himself bound by the Regulation,
and
was not prepared to consider any information presented to him outside
of the certificate by the Department of Labour. This approach
does
indeed negate the very reason for the existence of discretionary
powers that the first respondent has in terms of s 31 (2)
of the Act.
The rigid approach demonstrates that the first respondent did not
apply his mind at all to the relevant question at
hand and hence the
relevant considerations. That consequently fettered his discretion.
[18]
In
Kemp NO v Van Wyk
2005 (6) SA 519
(SCA) the Court
observed at para 1:
‘
A public official who is vested with a discretion
must exercise it with an open mind but not necessarily a mind that is
untrammelled
by existing principles or policy. In some cases, the
enabling statute may require that to be done, either expressly or by
implication
from the nature of the particular discretion, but,
generally, there can be no objection to an official exercise a
discretion in
accordance with an existing policy if he or she is
independently satisfied that the policy is appropriate to the
circumstances
of the particular case. What is required only that he
or she does not elevate principles or policies into rules that are
considered
to be binding with the result that no discretion is
exercised at all.’
[19]
The court went on to find at para 10 that: ‘He was
entitled to evaluate the application in the light of the
directorate’s
existing policy and, provided that he was
independently satisfied that the policy was appropriate to the
particular case, and did
not consider it to be a rule to which he was
bound, I do not think that it can be said that he failed to exercise
his discretion.’
[20]
Mr Nacerodien who appeared for the respondents accepted that s
31 (2) (c) provides the first respondent with wide discretionary
powers. He however submitted that such discretionary powers are
constrained. In his view, such powers must be exercised in the
context of a particular scenario. The scenario in this case, being
the purpose of the Regulation which is to protect the South African
labour. He argued that the Department of Labour is best suited to
provide that evidence, such being shown by means of a certificate.
In
his view, evidence was required to gainsay the applicant’s
say-so; his version could not simply be accepted. According
to him,
it would never be known if there are any South Africans who could
provide the same caregiving service provided by the applicant
as no
evidence of a diligent search was provided.
[21]
Mr Nacerodien further referred to a passage in Hoexter’s
Administrative Law in South Africa
, Second Edition at pages 46
to 47 to support a proposition that the decision maker cannot have a
completely free hand in applying
his discretion. His decision must be
accompanied by implied duties to act according to minimum standards
of legality and good administration.
I agree with that. But that does
not mean that discretion should be so guarded such that it can never
be exercised. That would
imply fettering by rigidity. I do accept
that there may be cases where the discretion is narrowly confined
leaving the decision
maker with very little room to move, due to
statutory or policy constraints. The respondents have not shown the
current situation
to be that kind of a case. They have instead
proposed contradictory positions. On the one hand, they accept that s
31 (2) (c) gives
the first respondent a wide discretion whilst on the
other they suggest that his discretion is constrained due to the use
of the
word ‘
shall
’ in the Regulation.
[22]
I venture to say that by its nature a ‘
prescribed
requirement
’, as the word suggests, is peremptory.
Notwithstanding that, the legislature in s 31 (2) (c) saw fit to
provide that ‘any
prescribed requirement or form’ can be
waived on good cause shown. The prescriptive requirement in the
Regulation is directed
at a person applying for a permit to comply
with it and not at the decision-maker’s discretionary powers.
Furthermore, and
most importantly, almost all the requirements
prescribed in the Regulations are mandatory. Therefore, if the
language used in those
provisions is such that it confines the
discretion of the first respondent and if the interpretation proposed
by the respondents
is correct, that would mean that the first
respondent has no discretion whatsoever or has very limited
discretion to waive any
requirement or form prescribed in the
Regulations. The existence of s 31 (2) (c) would be rendered
superfluous. The Regulations,
however, reveal a contrary position.
They specifically place recognition to the provisions of s 31 (2) (c)
of the Act and the first
respondent’s discretion to waive the
prescribed requirements on good cause shown.
[23]
Regulation 29 of the Regulations provides as follows:
‘
Waiver of prescribed requirements
29.
An application contemplated in section 31 (2)
(c) of the Act shall be made to the Minister on Form 48 illustrated
in Annexure A,
supported by reasons for the application.’
[24]
Notably Form 48 contains,
inter alia
, the following
information:
‘ …
PLEASE READ THE FOLLOWING
In providing for the regulation of admission of
foreigners to and their residence in the Republic, the Immigration
Act, 2002 (Act
No 13 of 2002), inter alia, aims to promote economic
growth through the employment of needed foreign labour which does not
adversely
impact on existing labour standards and rights and
expectations of South African workers.
Temporary residence permits
In order to satisfy the Director-General that the
issuing of a work permit to a foreigner would promote economic growth
and would
not be to the disadvantage of South African citizens or
permanent residents, documentary proof must be submitted that a
diligent
search had been done and that the employer had been unable
to employ a local candidate with qualifications or skills and
experience
equivalent to those of the applicant. This requirement is
satisfied by means of an advertisement in the national printed media,
which would afford South African citizens and permanent residents the
opportunity to compete for the position.
In terms of section 31(2)(c) of the Act, the Minister
may, for good cause, waive any prescribed requirement or form.
Should
a foreigner thus not be able to comply with the above requirements,
he/she or the employer may request the Minister to exempt
the
applicant from submitting the relevant document(s)
.
The
following documents have to accompany this application
:
(a)
A letter signed by the employer, citing the
requirements to be waived and a comprehensive motivation for each
requirement.
(b) A copy of the applicant's curriculum
vitae.
(c) A copy of the applicant's passport
and all temporary residence permits affixed therein.
(d) A copy of the employment contract signed by
both the employer and the employee.
(e) Background on the company/institution
for record purposes.
Should the request be considered favourably, a letter
will be forwarded to the applicant or his/her employer, which has to
be submitted
with the application and remaining requirements at the
nearest Regional Office of the Department or South African foreign
office
if the applicant is still abroad.
Permanent residence permits
In terms of section 31(2)(c) read with section 27 of the
Immigration Act, 2002 (Act No 13 of 2002), and the permanent
residence
application form BI-947, the Minister may, for good cause,
waive any prescribed requirement or form. Should a foreigner thus not
be able to comply with any of the requirements, he/she may request
the Minister to exempt the applicant from submitting the relevant
document(s). The following documents have to accompany this
application:
(a) A letter signed by the applicant, citing the
requirements to be waived and a comprehensive motivation for each
requirement.
(b) A copy of the applicant's curriculum vitae.
(c) A copy of the applicant's passport and all
temporary residence permits affixed therein.
(d) A copy of the employment contract signed by
both the employer and the employee. if applicable.
(e) Background on the company/institution for
record purposes.
(f) Business Plan, Bank or financial
statements, if applicable
(g) Recommendation from the Department of Trade
and Industry, if the application is made in respect of a business
being conducted
in the Republic.’ (Underlined and
highlighted for emphasis)
[25]
A general work permit is a type of a temporary residence
permit as contemplated in s 1 read with ss 10 and 19 of the Act. It
is
quite plain from the reading of the information contained in Form
48 that the first respondent can waive the requirements contemplated
by the prescribed Regulation on good cause shown by a foreigner
and/or employer who is unable to comply with the prescribed
requirements.
[26]
There are no guidelines as to what would be considered as
constituting good cause. As things stand, it would appear that
matters
would be treated on a case by case basis as situations of
applicants may be unique. Mr Nacerodien is correct, though, that
exercise
of discretion must be within the object and purport of the
Act. This is to avoid condoning non-compliance with prescribed
requirements
unrestrictedly. Furthermore, this is especially so in
the era of modern constitutionalism as observed by Hoexter at page
46, which
requires some constraints on broad discretionary powers in
order to,
inter alia
, minimise the danger of infringement of
rights of individuals or class of people. That, however, should not
mean that the element
of flexibility should be lost. As was
stated by O ‘Regan J in
Dawood v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at para 53 ‘Discretion plays a crucial
role in any legal system. It permits abstract and general rules to be
applied
to specific and particular circumstances in a fair manner.’
[27]
I am alive to the fact that the issue of permits is in general
open to abuse. Abuse has, however, not been alleged in this
particular
case. It cannot be assumed that all applicants who apply
for waiver do so in order to abuse the system. Each case must
be
dealt with on its own merits. For all these reasons the decision
of the first respondent ought to be reviewed and set aside.
[28]
Turning to examine the issue of substitution. Once a decision
is reviewed in terms of s 6 of PAJA, s 8 (1) provides the court with
a fairly wide discretion to grant any order that it deems to be just
and equitable. A substitution order is granted in exceptional
circumstances. In
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd and Another
2015 (5)
SA 245
(CC), Khampepe J restated some of the principles and clarified
the test for exceptional circumstances. Broadly, she held the
following:
‘
[46] A case implicating an order of substitution
accordingly requires courts to be mindful of the need for judicial
deference and
the obligations under the Constitution
…
.
[47] To my mind, given the doctrine of separation of
powers, in conducting this enquiry there are certain factors that
should inevitably
hold greater weight.
The first is whether a
court is in as good a position as the administrator to make the
decision. The second is whether the decision
of an administrator is a
foregone conclusion. These two factors must be considered
cumulatively. Thereafter, a court should still
consider other
relevant factors. These may include delay, bias or the incompetence
of administrator. The ultimate consideration
is whether a
substitution order is just and equitable. This will involve
consideration of fairness to all implicated parties.
It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each matter on a case-by-case basis
that
accounts for all relevant facts and circumstances.’
[48] A court will not be as good a position as the
administrator where the application of the administrator’s
expertise is
still required and a court does not have all the
pertinent information before it. This would depend on the facts of
each case…’
(Underlined for emphasis)
[29]
I agree with Mr Nacerodien that the decision of the
administrator is not a foregone conclusion. Similarly, it cannot be
said with
utmost certainty that the court is in as good a position as
the administrator to make a decision in place of the administrator in
this case for various reasons. In the first instance, the
administrator made his decision moving from an incorrect legal
premise
that the requirements of the Regulation had to be complied
with before the application for a waiver could be entertained. When
he makes the decision this time around he will have to consider the
reasons presented by the applicant for the waiver which include
the
physical and mental condition of a young man with cerebral palsy; the
uniqueness of the ‘caregiving’ relationship
and the bond
between the applicant and Alistair, which has developed since
2003/2004, and which has reportedly contributed to his
development
and well-being which may informingly be affected negatively if the
applicant’s service is discontinued. Whether
those factors
taken together with others constitute good cause is a decision to be
made by the first respondent.
[30]
The court is not in as good a position because the reports
done by the experts regarding Alistair’s livelihood, physical,
emotional and psychological capabilities have not all been updated.
The applicant attached 2010 reports to his application to the
administrator which contained assessments that were done when
Alistair was a minor. Alistair is now a 22-year-old young man. A
new
report dated 1 February 2016 by Mr Loebenstein was placed before the
court. This report indicates Alistair’s progress
in terms of
his personal functioning. Such improvement is attributed to the
applicant’s presence in his life.
[31]
The administrator would be better placed to make the necessary
assessment and call for any further information necessary to consider
the exemption application. He may also call for whatever other
evidence as may be necessary in considering the application, such
as,
more information on steps taken to search for a suitable South
African caregiver before finding the applicant. These
examples are
not meant to be prescriptive but they are given merely to illustrate
the inappropriateness of the substitution relief.
[32]
Mr Nacerodien suggested that if remittal is ordered, it must
be accompanied by directions as the outcome of the application could
still be the same as before. My view is that, from the reading of
this judgment, the respondents would grasp the reason why the
first
respondent’s decision was reviewed and remitted. The court
order remitting the matter does not need to be accompanied
by further
directions. Equally so, the applicant would note the shortcomings of
his application from the judgment and forward whatever
additional
information relevant to the administrator for the reconsideration of
the application. These would include fresh reports
regarding the
physical development of Alistair and other evidence regarding skills
and experience of the applicant, the uniqueness
of the case as well
as evidence to support the assertion that Adv. Dickerson has
previously searched for suitable South Africans
and that none were
suitable for Alistair.
[33]
As regards costs, the applicant is entitled to payment of the
costs, even though he did not take up the offer made by the
respondents
to reconsider the application. It is clear that the issue
of compliance with the Regulation
vis a vis
the first
respondent’s discretion needed to be determined by this court,
taking into account the averments made by the respondents
in their
answering affidavit.
[34]
In view of the fact that the applicant’s application for
a waiver is to be remitted for reconsideration and the applicant had
been issued with a Form 20 pending the review application, it makes
sense that he be re-issued with a Form 20 document pending
the
outcome of his application for a status.
[35]
In the result, I make the following order:
1. The first respondent’s decision dated on 18
January 2016 rejecting the applicant’s application for a waiver
in terms
of
section 31
(2) (c) of the
Immigration Act 13 of 2002
of
the requirements as prescribed by Regulation 18 (3) (a) of the 2014
Immigration Regulations is hereby reviewed and set aside;
2. The applicant’s application for a waiver in
terms of
s 31
(2) (c) of the
Immigration Act 13 of 2002
of the
requirements as prescribed by Regulation 18 (3) (a) of the 2014
Immigration Regulations, supplemented by such additional
information
as may be furnished by the applicant within 20 days of this order or
such extended period as parties may agree and
such other information
as may be required for proper consideration of the application,
is remitted to the first respondent
for re-consideration.
3. The applicant is to be re-issued with a Form 20
document authorising the applicant to remain in the Republic of South
Africa
pending the application for a status, (if not already done as
contemplated in
section 32
(1) of the
Immigration Act 13 of 2002
), by
Thursday, 8 December 2016 subject to the applicant presenting himself
at the Department of Home Affairs at Barracks Street,
Cape Town on
that day.
4. The costs of this application are to be paid by the
respondents.
___________________
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For the
Applicant
: Adv. A de la Hunt
Instructed
by
: G Eisenberg,
Cape Town
For the
Respondents : Adv. A Nacerodien
Instructed
by
: State Attorney,
Cape Town