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[2017] ZAWCHC 137
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Link and Others v Director-General: Dept Home Affairs and Others (8528/2017) [2017] ZAWCHC 137; [2018] 1 All SA 542 (WCC) (23 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 8528/2017
In
the matter between:
FRANZ-JOSEF
LINK
First
Applicant
THOMAS
LINK
Second
Applicant
ERNST
ALOYS
DORNSEIFER
Third
Applicant
MARIA
BRIGITTE LEONIE
DORNSEIFER
Fourth
Applicant
v
THE
DIRECTOR-GENERAL: DEPT HOME
AFFAIRS
First
Respondent
THE DEPUTY DIRECTOR-GENERAL:
IMMIGRATION
SERVICES
Second
Respondent
THE
MINISTER OF HOME
AFFAIRS
Third
Respondent
VFS
VISA PROCESSING (SA) (PTY)
LTD
Fourth
Respondent
Coram
:
Justice J Cloete
Heard
:
12 September 2017
Delivered
:
23 November 2017
JUDGMENT
CLOETE
J
:
Introduction
[1]
This is an application to review and set aside the decisions of the
second respondent (the “DDG”) made on behalf
of the first
respondent to reject the permanent residence applications of the
first and third applicants, coupled with relief to
compel the first
respondent (the “DG”) to issue them with permanent
residence permits subject to the provisions of
s 25(3) and (4)
as well as s 28 of the Immigration Act 13 of 2002 (the
“Act”).
[2]
The second and fourth applicants are their respective spouses. Their
applications for permanent residence were based on this
fact and
therefore also rejected as a consequence. They accordingly
“piggyback” on the relief sought by the first and
third
applicants respectively.
[3]
The applicants also seek an order exempting them from having to first
exhaust their internal remedies contained in s 8(6)
of the Act.
Background
[4]
Sections 25 to 27 of the Act deal with permanent residence permits.
Section 27(e) relates to retired foreigners. The first applicant
applied for permanent residence in terms of s 27(e)(ii) as ‘
a
foreigner of good and sound character who…intends to retire in
the Republic, provided that such foreigner proves to the
satisfaction
of the Director General that he has a minimum prescribed net worth’.
[5]
The third applicant applied in terms of s 27(e)(i), the only
difference being that instead of relying on a minimum prescribed
net
worth, he applied as one who ‘
has the right to a pension or
an irrevocable annuity or retirement account which will give such
foreigner a prescribed minimum payment
for the rest of his life’
.
[6]
Regulation 24(12) of the
applicable Immigration Regulations
[1]
deals with the qualifying amounts for purposes of s 27(e)(i) and
(ii) and provides that:
‘
The
payment contemplated in section 27(e)(i) of the Act shall be,
per
month
, the
amount determined from time to time by the Minister by notice in the
Gazette and the net worth contemplated in section 27(e)(ii)
of the
Act shall be
a
combination of assets realising, per month
,
the amount determined by notice in the Gazette.’
[Emphasis
supplied].
[7]
The prevailing minimum amount
per month, which was published in the Gazette on 3 June 2014, is
R37 000.
[2]
[8]
There is no dispute that the
applicants are all foreigners ‘
of
good and sound character’
.
All are German citizens. The first and second applicants reside in
Paarl and have lived in South Africa since 2012. On 10 January
2012 they were issued with a business visa(s) which expired on
16 January 2017.
[3]
They still operate a business and have also invested approximately R9
million in property in Paarl. Since their visas expired they
reside
in South Africa on visitors visas which require them to leave the
Republic every six months.
[4]
[9]
The third and fourth applicants reside in Sandbaai near Hermanus.
During October 2014 they were granted temporary residence
in South
Africa. The third applicant was issued with a retired person visa
under s 20 of the Act and the fourth applicant
with a consequent
visitors visa. The third applicant’s visa expires on
30 December 2018 and the fourth applicant’s
visa expires
on 30 December 2017.
[10]
The first and second applicants lodged their applications for
permanent residence on 24 June 2015. The third and fourth
applicants did so earlier on 20 January 2015. Given the DG’s
failure to make a decision on their applications within
a reasonable
period they were eventually forced to approach court and on
23 February 2017 they obtained an order with the
consent of the
DG and the third respondent (the Minister) directing the DG to
determine their applications within 30 calendar days.
The decisions
were subsequently provided, albeit outside of the 30 day period.
All of their applications were rejected.
The
first applicant
[11]
Although at the time he lodged his application the first applicant
was receiving a pension income of just over R13 000
per month,
he applied for permanent residence on the basis that his assets
realise an income exceeding R37 000 per month.
At the time (when
the value of the rand was stronger against the euro) his monthly
income from his assets alone was some R62 000
per month and he
thus clearly met the prescribed minimum. This is not in dispute. What
is at issue is whether the first applicant
provided ‘
proof
to the satisfaction’
of the DDG of his minimum prescribed
net worth – or, as the DDG put it in his letter of rejection
dated 3 April 2017
– ‘
adequate proof’.
No other reasons were provided by the DDG for his decision.
[12]
The first and second applicants engaged IBN Business &
Immigration Solutions to assist them in their applications. The
covering letter of IBN to which their applications were annexed
included the following information:
‘
[The
first applicant]
holds
a property in Germany. This property is rented out altogether to two
tenants respectively and he receives a monthly income
thereof. The
address of the property in Germany is
[the
full street address was provided].
The
monthly income available to
[the
first applicant]
is
4.520.40 Euro per month when all rental income from the tenants are
combined, is equivalent to approx. ZAR 62 321.40 per
month
(please refer to the currency converter printout attached). Please
refer to deeds register, rental agreements and bank statements
attached…
Furthermore
he receives a monthly pension in the amount of 957,08 Euro which is
equivalent to approx. ZAR 13 195.00 per month.
Altogether
[the
first applicant]
receives
monthly an amount of
ZAR
75,516.40
.
The permanent residence based on retirement is thus based on the
income which he receives on a monthly basis…
In
terms of the information given, we deem the applicants to be suitable
candidates for permanent residence and submit the applications
on
their behalf. Should you require any additional information, kindly
contact the writer by telephone, fax or e-mail…
’
[5]
[13]
The property in Germany is a commercial property. The DG was provided
with a copy of the extract from the relevant Deeds Register
and a
sworn translation thereof, as well as the lease agreements and bank
statements reflecting payment of the amounts in the two
lease
agreements into the first applicant’s bank account.
[14]
The relevant portion of the DDG’s letter of rejection reads as
follows:
‘
The
pension, irrevocable annuity or retirement account stipulated in
Section 27(e)(i) must amount to at least R37 000 per month
and
the net worth contemplated in Section 27(e)(ii) of the Act shall be a
combination of assets realising R37 000 per month.
You
have failed to produce adequate proof that you meet the financial
requirements therefore you do not qualify for permanent residence
in
terms of
section 27(e)
of the
Immigration Act
>.
You
may, within 10 working days from the date of receipt of this notice,
make written representations for a review or appeal of
the decision.
Should you fail to make representations, the decision set out above
shall remain effective. It is your responsibility
to follow up with
the Department after 90 days, should you not have received a response
on your representation for a review or
appeal of the decision.’
[Emphasis
supplied].
[15]
In response to this communication the first applicant stated that:
‘
The
second respondent has provided no basis for the bald statement that I
have not provided adequate proof that I meet the financial
requirements set out in the legislation. It is not clear what I
failed to prove. He does not, for example, dispute the veracity
of
the supporting documents. He does not dispute the calculation of my
net worth.
Without
this information I am not able to make written representations for
[an
internal]
review
or appeal of the decision, as I was invited to do in the fourth
paragraph of the decision.’
[6]
[16]
In a letter dated 12 April 2017 the first applicant’s attorney
pertinently drew all of this to the attention of the DDG,
going so
far as to spell out the following:
‘
Any
decision that materially and adversely affects the rights of any
person shall be communicated to that person in the prescribed
manner
and shall be
accompanied by the reasons for that decision
.
We refer to the provisions of the
Promotion of Administrative Justice
Act, 3 of 2000
in this regard.
Your
letter has provided no basis for the bald statement that our client
has not met the financial requirements.
On
the face of the documents submitted to you, our client receives an
income from his asset of R62 321.40 per month:-
·
Are you disputing the
veracity of the supporting documents?
·
Are you disputing the
calculation of our client’s net worth?
·
Without this
information our client is not in a position to exercise his rights to
just administrative action.
·
The
“reasons” as given in your letter merely serve to delay
the matter and frustrate our client.’
[7]
[17]
From the papers it appears that the DDG has yet to respond to this
letter.
The
third applicant
[18]
It is not in dispute that the financial requirements for a retired
person temporary residence permit (or visa) are identical
to those
for applicants who wish to retire in South Africa as permanent
residents. It is also not in dispute that the supporting
documentation that accompanied the third applicant’s
application for a temporary residence visa in October 2014 was
accepted
by the DG as proof that he had met the financial
requirements of the Act. The third applicant applied for permanent
residence a
mere three months after securing his temporary residence
visa on the basis of the same type of documentation.
[19]
The third and fourth applicants similarly engaged IBN to assist them
in their permanent residency applications. The covering
letter of IBN
to which their applications were annexed included the following
information:
‘
[The
second applicant does]
have
the sufficient funds which enables him to sustain himself during the
retirement years he plan to spend in South Africa on a
permanent
basis. Mr. Dornseifer receive a monthly pension incomes from various
policies/insurance funds. First Mr. Dornseifer receive
a monthly
retirement pension from Deutsche Renteversicherung WestFalen of
248.02 Euro. Secondly he receive a monthly amount of
857.19 Euro from
his insurance policy, Provinzial. Thirdly Mr. Dornseifer receive a
monthly pension of 1,785.19 Euro from Deutsche
Telekom. In total Mr.
Dornseifer receive R39, 342.90 with the current exchange rate, see
attached currency converter printout…’
[8]
[20]
Bank statements from their joint Postbank account were annexed as
proof of payment of the various pension amounts, together
with proof
of the third applicant’s entitlement to receive such payments
from the pension funds concerned. Specific reference
is made in two
of these documents to the word “pension” which is defined
in the Concise Oxford English Dictionary as
meaning ‘
a
regular payment made by the state to people of or above the official
retirement age…a regular payment made during a person’s
retirement from an investment fund to which that person or their
employer has contributed during their working life…’
.
There is no suggestion by the DG or DDG that the third applicant’s
pension payments will cease on a date prior to his death.
The final
paragraph of the covering letter from IBN extended the same
invitation to the DG and/or DDG that ‘
should you require any
additional information, kindly contact the writer by telephone, fax
or e-mail’.
[21]
The letter of rejection from
the DDG is couched, in the relevant paragraphs, in identical terms to
the one received by the first
applicant. Accordingly a similar letter
was addressed by the third applicant’s attorney requesting
reasons. The DDG was pertinently
asked to explain whether he disputed
the veracity of the supporting documents or the calculation of the
monthly payment.
[9]
[22]
The State Attorney responded on the DDG’s behalf on 11 April
2017 and the relevant portion of that letter reads
as follows:
‘
2.
The reason for the rejection of the application for
[the
third applicant]
in
the letter mentioned above
[i.e.
the DDG’s letter of rejection]
is
clearly stated: The applicant failed to produce adequate proof that
he meets the financial requirements and therefore does not
qualify
for permanent residency in terms of
Section 27(e)
of the
Immigration
Act, No 13 of 2002
, as amended (“The Act”).
3.
The decision maker who has rejected the application has discharged
his office and is now as you are well aware
functus
officio
in the matter
and cannot revoke or change his decision.
4.
The Applicant has been advised of his right to appeal the decision
within 10 working days from date of delivery of this notice
(5 April
2017) by making written representations to the Department of Home
Affairs.
5.
The written representation by the applicant should be in the form of
a written appeal to the Minister of Home Affairs in terms
of Section
8(6) of the Act.
6.
The applicant is legally required to exhaust his internal remedies by
appealing his rejection to the Minister of Home Affairs
before
approaching a judicial court for any relief, even if his views are
that the reasons given for the rejection of his application
are “not
adequate”, or arbitrary or capricious.
7.
It would be improper and premature of the applicant to approach the
court for any relief if he has failed to exhaust his internal
remedies first.
8.
Our instructions are to oppose any application to court as alluded to
in the last paragraph of your letter dated 10 April 2017,
and will
any such application be opposed on the grounds set out above…’
[10]
[23]
The respondents did not deliver answering affidavits. The first to
third respondents instead filed a notice in terms of rule
6(5)(d)(iii) in which they contended that, as a matter of law, the
applicants are precluded from approaching court for relief without
first exhausting their internal remedies.
[24]
The first applicant subsequently sought leave to introduce a
supplementary affidavit which was opposed by the first to third
respondents. The purpose of the supplementary affidavit was twofold.
First, to place relevant information before the court which
only came
to the attention of the applicants after the application was
launched. Second, to place facts before the court in anticipation
of
the first to third respondents being unsuccessful in their opposition
based only on a point of law.
[25]
Leave to introduce the supplementary affidavit was granted, given
that the applicants were properly required to bring the new
information to the attention of the court (particularly in
circumstances where the first to third respondents had failed to do
so).
[26]
The information was that it had recently come to their attention that
the DG may be labouring under the misapprehension that
an applicant
for a s 27(e) permit must submit a
certificate by a chartered
accountant
that he or she ‘
has the right to a pension or
irrevocable retirement annuity with a minimum value of R20 000
per month or a net worth of at
least R12 000 000…
providing a minimum income of R20 000 for the rest of his/her
life’.
[27]
The first applicant stated that:
‘
12.
As can be seen from the page from the website of the Department of
Home Affairs (Department) attached hereto marked “FJL1”,
the Department has lost 4 616 permanent residence applications.
Affected applicants have been asked to resubmit their applications
by
31 July 2017. What is relevant for our purposes is the
application form, which is contained in a link “downloaded
here”.
13.
A copy of the form is attached hereto marked “FJL2”. It
is marked B1-947. The sub-heading refers to sections 26
and 27 of Act
No. 13 of 2002; Regulation 33.
14.
The form contains numerous errors and inconsistencies which will be
referred to at the hearing of this matter. At this stage,
it is
important to point out that the form is different in a number of
respects from the Form 18 (DHA-947), which forms part
of the
2014 Immigration Regulations.
15.
The “requirement” of a certificate by a chartered
accountant is found at 15.10.1 on page 17 of the form at “FJL2”.
16.
There is no
reference to certification by a chartered accountant in Form 18,
which forms part of the Regulations; or in Regulations
23 or 24
.
The only reference to this requirement is in respect of an
application contemplated in section
27(c)
of the
Immigration Act, and
is found in
Regulation 24(5)
and in the
correct version of Form 18. For convenience, I have attached a copy
of pages 175 and 176 of the Regulations marked “FJL3”.
17.
… Should the applicants be mistaken and the third respondent
has in fact promulgated amended regulations with requirements
that
specify the manner in which we are required to prove that we meet the
financial requirements, the respondents should file
answering
affidavits and place this information before the Court.
18.
It will be argued that the “new form” (referred to above
and attached hereto), strengthens our case for relief in
terms of
section 7(2)(c)
of PAJA. Had we exercised our internal remedies all
we would have been able to do was re-submit the documentary proof
that we met
the financial requirements, or submit updated documents.
The second respondent, having regard to the “new requirements”
would have rejected our applications on the basis that the proof was
inadequate. We would then have to re-submit our documentation
to the third respondent, who would also reject our applications. At
best, they would have advised us that we had not provided
certification by a chartered accountant. In either case we would be
in the same position we are now, having to take the decision
of the
Minister on review.’
[11]
[Emphasis
supplied].
Discussion
[28]
Section 27(e)
provides as follows:
‘
27.
Residence on other grounds.
– The Director-General may, subject to any prescribed
requirements, issue a permanent residence permit to a foreigner of
good and sound character who---…
(e)
intends to retire in the Republic, provided that such foreigner
proves to the satisfaction of the Director-General that he or
she---
(i)
has the right to a pension or an irrevocable annuity or retirement
account which will give such foreigner a prescribed minimum
payment
for the rest of his or her life; or
(ii)
has a minimum prescribed net worth;…’
[29]
The degree or nature of the proof required for purposes of
s 27(e)
is not prescribed in the body of either the Act or the regulations.
Regulation 23(1) however stipulates that an application for
a
permanent residence permit contemplated in s 25(2) of the Act
‘
shall be made on Form 18 illustrated in Annexure A…’
.
Section 25(2) in turn provides that:
‘
Subject
to this Act, upon application, one of the permanent residence permits
set out in sections 26 and 27 may be issued to a foreigner.’
[30]
Regulation 23(2) to (7) sets out the documents that are required to
accompany such an application. No reference is made to
any financial
documentation other than in relation to applications under s 26(c)
and (d) and 27(g) of the Act which do not
apply to the first and
third applicants.
[31]
Form 18 – completed by the first and third applicants –
bears the heading ‘
Application for Permanent Residence
Permit [Section 25(2): Regulation 23(1)]’.
The form
contains a schedule listing the documents which must be submitted
‘
for all categories of applicants’
. Under the
block referring to s 27(e) the documents are described as
follows:
‘
Proof
of a pension fund or an irrevocable retirement annuity or a net worth
or a combination of assets realising the minimum amount
per month as
determined from time to time by the Minister by notice in the
Gazette.’
[32]
By contrast, the requirement on
the Departmental website
[12]
reflects, under the block for category s 27(e) applicants, that
what must be submitted is a certificate by a chartered accountant
‘
that applicant has
the right to a pension or irrevocable annuity with a minimum value of
R20 000 per month or a net worth of
at least
R12 000 000…providing a minimum income of R20 000
for the rest of his/her life’.
[33]
It is thus evident that the Departmental website purports to contain
a requirement for a s 27(e) application which is
not prescribed
by the Act or the regulations, and in turn, Form 18. There is simply
no prescribed requirement for a certificate
by a chartered accountant
to accompany such an application and this was properly conceded by
counsel for the first to third respondents.
Clearly, a list of
requirements generated by the officials of the Department –
purporting to have been produced pursuant
to s 26 and s 27
and ‘
regulation 33’
– can never override the
provisions of the Act or the regulations issued thereunder. In any
event there is no regulation
33 – which is presumably meant to
be a reference to regulation 23 – and the latter, as I have
said, does not refer
directly or indirectly (by way of Form 18) to
any such requirement. Moreover the financial requirements stipulated
on the Departmental
website for s 27(e) applicants conflict with
the provisions of regulation 24(12) and the amount determined by the
Minister
herself of R37 000 per month.
[34]
Accordingly, and to the extent that the DDG might have placed
reliance, in rejecting the applications, on the absence of a
certificate by a chartered accountant, such reliance was and is
misplaced. Of course, neither the applicants nor the court know
whether such reliance caused the DDG to reject the applications
because no reasons were given for the rejection, other than the
bald
statement that the applicants failed to provide ‘
adequate
proof’
.
[35]
It was argued on behalf of the first to third respondents that the
‘
reasons given’
, in the context in which the
applications were rejected, were adequate, because they are
‘
objectively discernible’
. However this cannot be
the case when regard is had to the plain requirements of Form 18
itself, and particularly where, in respect
of the third applicant,
the DG accepted, without demur, the “proof” that he
submitted for a temporary residence visa
– the identical type
of proof – only a few months before submission of his
application for a permanent residence visa.
[36]
Furthermore, s 27(e) requires a foreigner to ‘
prove to
the satisfaction’
of the DG that he or she has met the
prescribed minimum financial requirements. In these circumstances,
and given the apparent
confusion within the Department itself –
as evidenced by its own website – the “reasons”
provided by the
DDG were grossly inadequate.
[37]
As was held in
Bato
Star
:
[13]
‘
[40]
What constitutes adequate reasons has been aptly described by
Woodward J, sitting in the Federal Court of Australia, in the
case of
Ansett Transport
Industries (Operations) Pty Ltd and Another v Wraith and Others
[1983] FCA 179
;
(1983) 48 ALR 500
at
507 (23-41), as follows:
“
The passages
from judgments which are conveniently brought together in
Re
Palmer and Minister for the Capital Territory
(1978)
23 ALR 196
at 206-7;
1 ALD 183
at 193-4, serve to confirm my view
that s 13(1) of the Judicial Review Act requires the decision-maker
to explain his decision
in a way which will enable a person aggrieved
to say, in effect: ‘Even though I may not agree with it, I now
understand why
the decision went against me. I am now in a position
to decide whether that decision has involved an unwarranted finding
of fact,
or an error of law, which is worth challenging.’
This requires that the
decision-maker should set out his understanding of the relevant law,
any findings of fact on which his conclusions
depend (especially if
those facts have been in dispute), and the reasoning processes which
led him to those conclusions. He should
do so in clear and
unambiguous language, not in vague generalities or the formal
language of legislation. The appropriate length
of the statement
covering such matters will depend upon considerations such as the
nature and importance of the decision, its complexity
and the time
available to formulate the statement. Often those factors may suggest
a brief statement of one or two pages only.”
To
the same effect, but more brief, is Hoexter
The
New Constitutional and Administrative Law v
ol
2 at 244:
“
[I]t is
apparent that reasons are not really reasons unless they are properly
informative. They must explain
why
action
was taken or not taken; otherwise they are better described as
findings or other information.” ’
[38]
An affected person must exhaust
his or her available internal remedies prior to judicial review of an
administrative action, unless
exceptional circumstances are found to
exist by a court under s 7(2)(c) of PAJA:
[14]
see
inter alia Koyabe and
Others v Minister of Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae).
[15]
[39]
Section 8(6) of the Act provides that an applicant aggrieved by a
decision of the DG has the right to ‘
make an application in
the prescribed manner to the Minister for the review or appeal of
that decision’.
[40]
The parties are
ad
idem
that an appeal or
review in terms of s 8(6) is a hearing
de
novo
.
[16]
The form which an applicant is required to complete for this purpose
is Form 49.
[17]
This form in turn requires an applicant to state the reason(s) for
the ‘
appeal’
and expressly stipulates that the ‘
completed
form must be accompanied by the relevant documents in support of your
appeal’.
[41]
Apart from the obvious reason of the rejection of their applications,
the only other reason which the first and third applicants
will be
able to give is that, according to the DDG, they have failed to
provide ‘
adequate proof’
that they meet the
prescribed financial requirements. They cannot defend their position
in any way and they cannot say whether
the DDG’s decision has
involved an unwarranted finding of fact, an error of law, or a flawed
reasoning process. At best,
they can only speculate. Given that this
is all they can do, they are in no position to exercise their right
to just administrative
action.
[42]
What is also relevant is that the Minister herself is a party to
these proceedings but has chosen to given no input whatsoever.
It
will be the Minister or her delegated appointee who will consider and
decide the appeals. Yet the Minister has permitted a website,
which
is both legally and factually incorrect – at least for s 27(e)
applicants – to be set up for purposes of
conveying crucial
information to the public at large.
[43]
Moreover, there can be no question that the first and third
applicants have produced objectively adequate proof that they meet
the financial requirements. Indeed it is difficult to conceive what
more they could have done, having regard to the Act, regulations
and
Form 18. Perhaps the strongest indicator of this is the DG’s
acceptance of the identical type of documentation in the
case of the
third applicant when granting him a temporary residence visa just
three months before he applied for permanent residence.
[44]
This is also not one of those cases where the subject matter of an
administrative action is very technical or of a kind where
a court
has no particular proficiency, as for example in fishing allocations
or the award of tenders.
[45]
In giving content to
‘
exceptional
circumstances’
for
purposes of s 7(2)(c), a court must consider the availability,
effectiveness and adequacy of the existing internal remedies.
[18]
The remedy under s 8(6) of the Act is clearly technically
available. However, its effectiveness and adequacy are neutralised
by
the fact that, in the absence of adequate reasons, the applicants
cannot give any content to their right of appeal or, put differently,
the internal remedy available under the Act is in substance no remedy
at all.
[46]
I am thus persuaded that the first and third applicants have met the
high threshold of “exceptional circumstances”
and that
they are entitled to the exemption under s 7(2)(c) of PAJA.
[47]
Sections 25(3) and (4) of the Act provide that:
‘
(3)
A permanent residence permit shall be issued on terms and conditions
that the holder is not a prohibited or an undesirable person,
and
subject to section 28.
(4)
For good cause, as prescribed, the Director-General may attach
reasonable individual terms and conditions to a permanent residence
permit.’
[48]
Section 28 of the Act provides that the DG may withdraw a permanent
residence permit on various specified grounds. The order
that I shall
make will take these statutory provisions into account. Costs will
follow the result.
[49]
In the result the following order is made:
1.
The first and
third applicants, and consequently the second and fourth applicants,
are exempted from the obligation to exhaust the
internal remedies
available to them in terms of section 8(6) of the Immigration Act 13
of 2002 (“the Act”).
2.
The following
decisions of the second respondent (made on behalf of the first
respondent) are reviewed and set aside:
2.1
The decision made
on 3 April 2017 to reject the first applicant’s application for
a permanent residence permit in terms of
section 27(e)(ii) of the
Act;
2.2
The consequent
decision made on 1 June 2017 to reject the second applicant’s
application for a permanent residence permit
in terms of section
26(b) of the Act;
2.3
The decision made
on 3 April 2017 to reject the third applicant’s application for
a permanent residence permit in terms of
section 27(e)(i) of the Act;
and
2.4
The consequent
decision made on 21 April 2017 to reject the fourth applicant’s
application for a permanent residence permit
in terms of section
26(b) of the Act.
3.
The first
respondent is ordered to issue the first applicant with a permanent
residence permit in terms of section 27(e)(ii) of
the Act, and the
second applicant with a consequent permanent residence permit in
terms of section 26(b) of the Act, within 30
(thirty) calendar days
from date of this order, and to make same available at the Cape Town
offices of the fourth respondent (subject
to the provisions of
sections 25(3) and (4) as well as section 28 of the Act).
4.
The first
respondent is ordered to issue the third applicant with a permanent
residence permit in terms of section 27(e)(i) of the
Act, and the
fourth applicant with a consequent permanent residence permit in
terms of section 26(b) of the Act, within 30 (thirty)
calendar days
from date of this order, and to make same available at the Cape Town
offices of the fourth respondent (subject to
the provisions of
sections 25(3) and (4) as well as section 28 of the Act).
5.
The first to third
respondents shall pay the costs of this application jointly and
severally, the one paying the others to be absolved,
and including
all reserved costs orders.
________________________
J
I CLOETE
For
applicants
: Adv Lee Anne
De
la Hunt
– 4245301
Instructed by: Scheibert and
Associates, Mr H-P Scheibert – 4220660
For
respondents
: Adv Adiel
Nacerodien
– 424 4875
Instructed
by: State Attorney, Ms S Karjiker – 4410200
[1]
Regulation Gazette No 10199 (22 May 2014).
[2]
GN 451, GG 37716 dated 3 June 2014.
[3]
Annexure ‘
FJL3’
,
record p30.
[4]
Record p463 para 22.
[5]
Annexure ‘
FJL3’
,
record pp30-31.
[6]
Record p21 paras 53 and 54 read with ‘
PJL5’
,
i.e. the decision, record p122, dated 3 April 2017.
[7]
Annexure ‘
FJL6’
,
record p125.
[8]
Annexure ‘
EAD4’
,
record pp225-226.
[9]
Annexure ‘
EAD9’
,
record pp299-301.
[10]
Annexure ‘
C’
,
record pp439-440.
[11]
Record pp461-462.
[12]
Annexures ‘
FJL1’
and ‘
FJL2’
,
record pp465-483 especially block 15.10, p482.
[13]
Minister of
Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407 (SCA).
[14]
Promotion of Administrative Justice Act 3 of 2000
.
[15]
2010 (4) SA 327
(CC) paras [34] to [38].
[16]
This issue was raised with counsel by way of a written
directive before the hearing and dealt with in supplementary heads
of argument.
[17]
In terms of
regulation 7(3).
[18]
Koyabe
at para [39].