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[2022] ZAWCHC 177
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Ling and Another v The Director-General of the Department of Home Affairs and Another (6928/2022) [2022] ZAWCHC 177 (9 September 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6928/2022
In
the matter between:
YEW
TECK
LING
First Applicant
SEE
HIE
CHUA
Second Applicant
and
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF HOME AFFAIRS
First Respondent
THE
MINISTER OF HOME AFFAIRS
Second Respondent
Coram:
Justice J Cloete
Heard:
8 September 2022
Delivered
electronically:
9 September 2022
JUDGMENT
CLOETE
J
:
Introduction
[1]
The
applicants, a married couple in their early seventies, are
Singaporean nationals who applied for permanent residence in South

Africa on 24 January 2019 in terms of s 27(f) and s 26(b)
of the Immigration Act
[1]
(“the
Act”).
[2]
Section 27(f) of the Act provides:
‘
The
Director-General may, subject to any prescribed requirements, issue a
permanent residence permit to a foreigner of good and
sound character
who –
…
(f)
has proven to the satisfaction of the Director-General that he or she
has a prescribed minimum
net worth and has paid a prescribed amount
to the Director-General.’
[3]
The
‘
prescribed
minimum net worth’
is R12 million, and the ‘
prescribed
amount’
is
R120 000.
[2]
It is not in
dispute that the first applicant’s net wealth exceeds
R49 million, or that he will be able to pay the prescribed

amount. In turn, s 26(b) of the Act provides:
‘
Subject
to section 25 and any prescribed requirements, the Director-General
may issue a permanent residence permit to a foreigner
who –
…
(b)
has been the spouse of a citizen or permanent resident for five years
and the Director-General is satisfied
that a good faith spousal
relationship exists: Provided that such permanent residence permit
shall lapse if at any time within
two years from the issuing of that
permanent residence permit the good faith spousal relationship no
longer subsists, save for
the case of death.’
[4]
The applicants were married in Singapore on
31 October 1974. It is common cause that their applications are
interlinked, since
if the first applicant’s is granted, so too
will the second applicant’s as his spouse. It is also common
cause that,
although the decision of the Director-General (“DG”)
which the applicants seek to impugn (“the impugned decision”)

does not refer specifically to the second applicant, the DG (as well
as the second respondent) have dealt with the applicants
collectively.
[5]
The
DG rejected the first applicant’s permanent residence
application on 26 August 2021 and it was communicated to the

applicants on 14 September 2021, i.e. 2 years and 8 months
after the permanent residence applications were submitted.

Ultimately, and for the reasons set out below, on 10 March 2022
the applicants launched these proceedings in which they seek
to
review and set aside the impugned decision. They also seek an order
that the respondents issue to them the permanent residence
permits
within 20 working days, alternatively, that the DG takes a
decision on their applications and delivers such decision
within
30 working days.
[3]
[6]
As will be demonstrated below, the DG’s
stance (and thus also that of the second respondent) on the rejection
of the permanent
residence applications and the current relief has
shifted since the impugned decision was made. It is necessary to deal
with this
in some detail given the substitution order which the
applicants seek.
Relevant
factual matrix
[7]
The DG’s decision and his “reasons”
therefor were set out in the refusal letter as follows:
‘
During
the processing of your application it was discovered that you have
submitted a fraudulent bank statement in support of your
application.
This renders you a person who is not of good and sound character. You
therefore do not qualify for permanent residence
in terms of section
27(f).
[8]
A full copy of the first applicant’s
permanent residence application was annexed to the founding papers. A
cursory perusal
reflects that he attached 9 bank statements as
follows:
8.1    DBS
Bank Singapore: 3 statements for the period 1 October 2018 to
31 December 2018, with 27 transactions
excluding monthly account
fees and interest earned;
8.2
First National Bank Private Wealth cheque account: 4 statements for
the period 4 September 2018 to 4 January
2019, with 186
transactions;
8.3
First National Bank savings account: 1 statement for the period
4 October 2018 to 3 November 2018
reflecting an opening
balance, interest accrued and a closing balance; and
8.4    UOB
Private Bank: 1 statement for the period 1 September 2018 to
29 September 2018 incorporating
balances of three separate
accounts.
[9]
The
first applicant did not submit any fraudulent documents (including
bank statements) in support of his application. Given the
DG’s
failure to identify the alleged ‘
fraudulent
bank statement’
the first applicant was left in the dark. Accordingly, on
15 September 2021 (i.e. one day after collecting the
impugned
decision), his attorneys filed a request in terms of PAIA
[4]
for the records pertaining to the decision against him. It was
directed to the Acting Chief Director: Legal Services within the

Department, who in turn forwarded it to another two officials,
stating only that ‘
The
forwarded request is for your attention’.
One of these officials was Ms Linda Sibeko who on 27 September
2021 advised the applicants’ attorney by email that the

Department ‘
will
revert to you shortly’.
On 30 September 2021 the applicants’ attorneys sent a
follow-up email to Ms Sibeko, but there was no reply. At
the
date of deposing to the founding affidavit, i.e. 9 March
2022, the first applicant stated that the PAIA application
‘
remains
pending to this day’
,
i.e. almost 6 months after its submission.
[10]
On
22 October 2021 the applicants’ attorneys wrote directly
to the DG seeking reasons for his decision in terms of s 5(1)
of
PAJA.
[5]
It was explained that
the first applicant was ‘
uncertain
of which statement the impugned decision is making reference to’
and a reply was requested by 5 November 2021. There was no reply
from the DG or any other person within the Department, despite
a
follow-up letter from the applicants’ attorneys on 15 December
2021, requesting a response by no later than 14 January
2022.
[11]
This
disregard for the first applicant’s plight by the DG and his
Department resulted in the launching of the current proceedings.

Although the parties are now
ad
idem
that no internal appeal lies against a decision at first instance of
the DG,
[6]
as the first
applicant put it:
‘…
even
if I could have filed an appeal – what would I have said? I do
not know why the DG’s decision was made. Which statement
was
supposedly fraudulent? Perhaps I could have provided all new bank
statements, but would that have addressed the DG’s
concern?
Perhaps the new statements would suffer from the same problems. Or,
perhaps the DG formed the view that the statements
themselves were
legitimate but the amounts listed therein were somehow problematic.
Or perhaps it was the account numbers, or the
dates of the
statements, which led him to believe fraud had occurred. I simply do
not know…’
[12]
After delivery of the rule 53 record by the
respondents, the first applicant deposed to a supplementary
affidavit, since it was
only upon receipt of that record that he was
able to establish what the DG was referring to when he made the
impugned decision.
The following was revealed.
[13]
On 19 January 2021, Ms Glenda Maila of
the Permanent Residence Section of the Department emailed First
National Bank to request
that it ‘
please
assist us with verification of the attached bank account as well as
the transactions therein’.
On the
same day, the Bank Statement Verification unit within First National
Bank emailed the Department, stating that ‘
[w]e
have analysed the bank statement
[sic]
provided and confirm that the statement
appears to be fraudulent as the transactions reflected thereon does
not correspond with
the transactions on the Bank’s systems’.
[14]
As soon as the record came into the
applicants’ possession they contacted First National Bank and
lodged a formal complaint.
The Bank thereafter conducted an internal
investigation and on 25 April 2022 advised both the first
applicant and Ms Maila
that:
‘
We
have looked into the incident and can confirm that the bank statement
submitted to FNB, by the DHA, dated 19 January 2021, with
reference
PRP2674541, are legitimate and in line with our banking records.
It is confirmed that
the correspondence sent to the DHA, by the Bank, dated 19 January
2021, advising that the statements may
have been fraudulent, was an
error…’
[15]
The first applicant accordingly submitted
that as this was the only basis on which the permanent residence
permits were refused,
it followed that the applicants should be
issued with the permits for which they applied. He stated further
that it was a source
of particular frustration and concern to them
that the dispute could so easily have been resolved once they
understood the reasoning
behind the impugned decision. Had the DG
given adequate reasons for his adverse decision at the outset –
that is, explained
which bank statement was deemed fraudulent and why
– the First National Bank investigation could and would have
occurred
prior to the current litigation. As he put it ‘
[o]ne
extra sentence in the… decision could have saved both us and
the Respondents a great deal of time and money’.
[16]
On
19 May 2022 the applicants’ attorneys wrote to Ms Sampson of
the State Attorney, placing the outcome of the First National
Bank
investigation on record, and calling upon the respondents to withdraw
their opposition to the relief sought. On 7 June 2022
Ms Sampson
responded by email,
[7]
as
follows:
‘
1.
…we do not wish to litigate via correspondence.
2.
Save to say the following, the Minister was conceded with documents
before him and a decision
was taken.
3.
Such decision is subject to review and your client has legitimately
reviewed same.
4.
The authenticity of the bank statement have been corrected after the
fact. This regrettably
cannot be attributed to Department of Home
Affairs.
5.
This onus remains with the applicant seeking a permit.
6.
Department of Home Affairs is amenable to settling the matter on the
following terms: As
your client’s current permit has expired,
your client apply for form 20 to legalize themselves in South Africa.
7.
This way the applicant can apply for a PRP application or/invoked the
8(6) appeal process
and seek condonation for lodging late.
8.
This will afford your client the opportunity to submit the correct
and verified bank statements
with proof thereof.
9.
We are advised that Department of Home Affairs has to be satisfied
about the authenticity
and veracity of the documents as submitted and
your client will now be able to better satisfy Department of Home
Affairs.
10.
We note the above is a practical and pragmatic solution going
forward.
11.
We have not briefed counsel to date and are hoping reasonableness
will prevail…’
[17]
I will assume that the reference to
‘
conceded’
in paragraph 2 of the aforementioned email was intended to be
‘
concerned’
.
However quite what the respondents sought to convey to the
applicants’ attorney in this email is difficult to discern.
First, given the concession that the authenticity of the bank
statement had been corrected, there was nothing for the first
applicant
to submit afresh as ‘
the
correct and verified bank statements with proof thereof’
.
Second, also given the aforementioned concession, the question arises
how submission of the same (verified) bank statement would
assist the
first applicant in being ‘
able to
better satisfy’
the Department.
[18]
Third, the respondents should have known
that the invocation of any appeal process does not apply to a
decision at first instance
by the DG. Fourth, despite all of this, it
seemed to be suggested by the respondents that the applicants must
start the entire
process again, 3½ years later, as a
‘
practical and pragmatic
solution’.
(The first applicant
did not have the opportunity to deal with the aforementioned email in
his supplementary affidavit since it
was deposed to on 25 May
2022 – however it is fair to say that if this court cannot make
head or tail of what the respondents
were trying to convey, it is
unlikely that the first applicant could have done so).
[19]
The answering affidavit was deposed to by
the DG himself. He set out the respondents’ grounds of
opposition as follows. The
permanent residence application was
processed in accordance with an established and strict standard
operating procedure, which
entails five stages (or levels) before a
decision is made. There cannot be a deviation from this procedure
‘
under any circumstances’
.
Should an application fail to meet quality assurance requirements at
any one of these five stages, it will not proceed to the
next stage
and will be refused (i.e. at the stage in question).
[20]
When First National Bank advised the
Department that ‘
the bank
statement’
appeared to be
fraudulent, a decision was made that the applicants did not qualify
for permanent residence. This, according to
the DG, was a ‘
correct,
lawful and reasonable decision’.
Moreover
the reason provided to the applicants was a clear and adequate one.
According to the DG, the first applicant had submitted
a total of 4
bank statements (which is incorrect) and it was unnecessary for him
to specify which of these were fraudulent since
the reason for his
decision ‘
cannot be clearer’
.
[21]
Contrary to what was contained in Ms
Sampson’s letter of 7 June 2022, namely that the
applicants had ‘
legitimately
reviewed’
the impugned decision,
the DG took the position that it was not susceptible to review, since
the erroneous information provided
by First National Bank did not
render his decision wrong, unlawful or unreasonable.
[22]
The DG went on to say that he is unable to
reconsider the impugned decision since this would undermine the
established Departmental
processes, and the only remedy available to
the applicants is to submit an entirely new application:
‘
The
application in this matter has been finalised. The file has been
closed and it cannot be re-opened to accept the new information
from
FNB and then approve the application without it going through the
necessary stages as explained above.’
[23]
The DG added that, although the respondents
do not dispute that his decision to reject the applications for
permanent residence
was based on a factual mistake, if he were to
deal with the matter in any other manner it would be irregular and
result in negative
audit findings being made against the Department.
[24]
The only reasonable inference to be drawn
from this is that the DG considers the discretion which is
statutorily conferred upon
him in terms of s 27 of the Act is
fettered by the Department’s internal processes, which on his
version cannot be deviated
from under any circumstances for fear of a
negative audit finding; and that his understanding of ‘
subject
to any prescribed requirements’
in the opening paragraph of s 27 includes those internal
processes, whatever they might be, since they were not properly
explained in the answering affidavit.
[25]
In his replying affidavit the first
applicant fairly questioned how, even if he and his wife were to
submit fresh applications,
they would ever have a prospect of being
granted permanent residence, given that, on the DG’s own
version, the internal records
of the Department contain a decision
that they have committed fraud. This essentially places himself and
his wife in a catch-22
situation.
[26]
The DG also alleged that, in any event, the
applications had not been fully verified, apparently because they did
not proceed through
the further stages of ‘
quality
assurance’
. The first applicant
correctly submitted that, at most, the DG’s stance is that
there might be some other issue with their
applications, but he does
not know what it is, cannot say that such issue exists, and has not
sought to establish what it might
be.
[27]
In later heads of argument filed on the
respondents’ behalf, and persisted with at the hearing, the
respondents’ position
changed yet again. They stated that they
are not opposing the review relief sought, but only that a
substitution order should not
be granted, given the policy-laden
nature of immigration decisions as well as the doctrine of separation
of powers. It was submitted
that, in these circumstances, the just
and equitable remedy would be to remit the matter for reconsideration
by the DG, and for
each party to pay their own costs.
Discussion
[28]
The
concession finally made by the respondents that the impugned decision
is susceptible to judicial review is well made. In
Pepcor
Retirement Fund and Another v Financial Services Board and Another
[8]
it was held that:
‘
[47]
In my view, a material mistake of fact should be a basis upon which a
Court can review an administrative decision. If legislation
has
empowered a functionary to make a decision, in the public interest,
the decision should be made on the material facts which
should have
been available for the decision properly to be made. And if a
decision has been made in ignorance of facts material
to the decision
and which therefore should have been before the functionary, the
decision should (subject to what is said in para
[10] above) be
reviewable… The doctrine of legality which was the basis of
the decisions in
Fedsure
,
Sarfu
and
Pharmaceutical Manufacturers
requires
that the power conferred on a functionary to make decisions in the
public interest, should be exercised properly, i.e.
on the basis of
the true facts…
[49]
Whether a review should succeed in a matter… will depend on a
consideration of the public interest in having the decision
corrected
and other factors, and in particular, the interests of the person in
whose favour a decision has been made. Ultimately,
a value judgment,
balancing all the relevant factors, will be required…’
[9]
[29]
Pepcor
has
since been followed in a number of cases, including many where the
decision-maker was not at fault for the decision.
[10]
In
Airports
Company South Africa v Tswelokgotso Trading Enterprises CC
[11]
the court summarised the current state of the law as follows:
‘
In
sum, a court may interfere where a functionary exercises a competence
to decide facts but in doing so fails to get the facts
right in
rendering a decision, provided the facts are material, were
established, and meet a threshold of objective verifiability.
That is
to say, an error as to material facts that are not objectively
contestable is a reviewable error…’
[30]
The
respondents now also agree that the impugned decision is susceptible
to judicial review in terms of s 6 of PAJA. Accordingly
it
follows that it must be set aside. As was held in
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and

Others
[12]
:
‘
Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)(a) of the Constitution

requires the decision to be declared unlawful. The consequences of
the declaration of unlawfulness must then be dealt with in a
just and
equitable order under section 172(1)(b). Section 8 of PAJA gives
detailed legislative content to the Constitution’s
“just
and equitable” remedy.’
[31]
Turning now to what would be a just and
equitable remedy. While I fully acknowledge the polycentric nature of
decisions made by
the DG in terms of the Act, as well as the
importance of the doctrine of separation of powers, as I see it the
respondents face
two serious obstacles in seeking a reconsideration
order instead of a substitution order. The first is that, on the DG’s
own version, there is nothing before him to reconsider. The second is
what the DG himself considers to constitute adequate reasons
for any
decision.
[32]
In
Koyabe
and Others v Minister of Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae)
[13]
it was held that:
‘
[60]
Section 33(2) of the Constitution provides a right to written reasons
to those whose rights have been adversely affected by
administrative
action. Indeed PAJA, which was enacted to give effect to this and
other administrative justice rights, states in
its preamble that part
of the purpose of giving effect to these rights is to -
“
create
a culture of accountability, openness and transparency in the public
administration or in the exercise of a public power
or the
performance of a public function…”
In keeping with this
important goal, s 5 of PAJA must be viewed as giving effect to
s 33(2) of the Constitution. These
two provisions read together
entitle the applicants to reasons…
[61] The declaration
that a person is an illegal foreigner under s 8(1) impacts
adversely on him or her. In addition to having
to leave the country,
it stigmatises the person and may become a basis for denial of entry
into other foreign countries. As a consequence,
a person will be
anxious to know the basis for the declaration,
particularly in
circumstances where it might be based on a misunderstanding or
incorrect information
. In that regard, the person may want to
appeal or have the decision reviewed and set aside by a higher
authority. Reasons for the
finding… are therefore important in
seeking a meaningful review…
[62] Further, in our
constitutional democracy, officials are enjoined to ensure that the
public administration is governed by the
values enshrined in our
Constitution. Providing people whose rights have been adversely
affected by administrative decisions with
reasons, will often be
important in providing fairness, accountability and transparency. In
the context of a contemporary democratic
public service like ours,
where the principles of batho pele, coupled with the values of
ubuntu,
enjoin the public service to treat people with respect and
dignity and avoid undue confrontation
the Constitution indeed
entitles the applicants to reasons for the decision declaring them
illegal foreigners…
[63]
Although the
reasons must be sufficient, they need not be specified in minute
detail; nor is it necessary to show how every relevant
fact weighed
in the ultimate finding
. What constitutes adequate reasons will
therefore vary, depending on the circumstances of the particular
case.
Ordinarily, reasons will be adequate if a complainant can
make out a reasonably substantial case for a ministerial review or an
appeal
.’
(my emphasis)
[33]
In this regard, I can do no better than
refer to the first applicant’s explanation set out above as to
why he considered the
“reason” provided by the DG to be
wholly inadequate. He is quite right. There is also the additional
factor of the
inherent fallacy in that “reason”. There
were not, as the DG maintains, a total of 4 bank statements. What was
submitted
by the first applicant were 9 such statements from 3
different banks containing no less than 213 transactions and spanning
the
period September 2018 to January 2019. The DG’s somewhat
dismissive stance that his “reason” could not have been

clearer, simply cannot be accepted. In these circumstances, there is
every likelihood that, even if it were somehow permissible
for this
court to refer the matter back to the DG for reconsideration, the
applicants will face the same hurdle should the DG,
for one or other
reason, decide that they have not met the requirements for the issue
of permanent residence permits.
[34]
Section 8(1) of PAJA, which deals with just
and equitable remedies, provides in relevant part that:
‘
The
court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable,

including orders –
…
(c)
Setting aside the administrative action and –
…
(ii)
in exceptional cases –
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action...’
[35]
The
test for applicability of substitution orders was set out in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa and Another
:
[14]
‘
[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 an administrator. The
ultimate consideration
is whether a substitution order is just and equitable. This will
involve a 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 in 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.
Generally, a court ought to
evaluate the stage at which the administrator’s process was
situated when the impugned administrative
action was taken. For
example, the further along in the process, the greater the likelihood
of the administrator having already
exercised its specialised
knowledge. In these circumstances a court may very well be in the
same position as the administrator
to make a decision. In other
instances some matters may concern decisions that are judicial in
nature. In those instances –
if the court has all the relevant
information before it – it may very well be in as good a
position as the administrator
to make the decision.
[49] Once a court has
established that it is in as good a position as the administrator, it
is competent to enquire into whether
the decision of the
administrator is a foregone conclusion. A foregone conclusion exists
where there is only one proper outcome
of the exercise of an
administrator’s discretion and “it would merely be a
waste of time to order the [administrator]
to reconsider the matter”.
Indubitably, where the administrator has not adequately applied its
unique expertise and experience
to the matter, it may be difficult
for a court to find that an administrator would have reached a
particular decision and that
the decision is a foregone conclusion.
However, in instances where the decision of an administrator is not
polycentric and is guided
by particular rules or by legislation, it
may still be possible for a court to conclude that a decision is a
foregone conclusion.’
[36]
Regrettably, in this matter the DG has been
singularly vague and unhelpful in detailing and explaining the
internal process(es)
to be followed. All that this court knows is
that there are five stages at which ‘
quality
assurance’
procedures are
implemented, and that the first applicant’s application was ‘
at
a stage where verification of the supplied bank statements was done’
.
Given that First National Bank provided the DG with incorrect
information, the process – at whatever stage it was –

summarily terminated. The DG has not disclosed what that stage in the
process was, nor has he disclosed what other stages, if any,
still
have to be completed. Moreover, one could reasonably have expected
him to take the court into his confidence about which,
if any, of the
other documents submitted by the applicants could have raised a red
flag. Balanced against this is the patent, ongoing,
severe prejudice
to the applicants who have now had to wait 3½ years for their
permanent residence applications to be finalised,
with no foreseeable
end in sight. The DG does not even suggest a time limit to be imposed
by this court for any “reconsideration”
and the court is
thus left in the dark as to what the DG considers to be a reasonable
time.
[37]
Put differently, the DG only has himself to
blame for failing to place facts before this court which could
persuade it that it is
not in as good a position as the DG to make a
decision. It also seems that, given the DG’s explanation of an
internal process(es)
which may not be deviated from ‘
under
any circumstances’
, taken
together with the inference that he considers his own discretion to
be fettered by those (undisclosed) internal processes,
any question
of expertise recedes into the background. Indeed, the DG himself has
not suggested that such expertise would be required
were a
reconsideration order to be granted. His stance is different, namely
that there is nothing before him to reconsider.
[38]
The
DG has known since the current proceedings were instituted that the
applicants sought a substitution order as part of the relief.
As was
held in
Masamba
v Chairperson, Western Cape Regional Committee, Immigrants Selection
Board
:
[15]
‘
The
respondents have had more than sufficient time and opportunity to put
all the relevant facts before this Court. If the respondents
at any
relevant time had at their disposal additional information impacting
negatively upon the applicant’s compliance with
the “scarcity
of occupational skills requirement”, or any of the other
criteria governing the issue of an immigration
permit, such
information could, and should, have been put forward. The fact that
no additional information of this kind was forthcoming
justifies this
Court in concluding that no such information exists and that all the
relevant facts are before this Court. This
Court is therefore
certainly in as good a position as the Regional Committee to make a
decision regarding the applicant’s
application for an
immigration permit in terms of section 25 of the Act.’
[39]
Taking
all of the above into account it is my view that this is the type of
situation which falls into the category of “exceptional

circumstances” envisaged in s 8(1)(c)(ii)(aa) of PAJA.
Accordingly, and subject to payment of the prescribed amount,
the
provisions of s 25(3) and (4) as well as s 28 of the Act,
the substitution order sought by the applicants is the
appropriate
one to make.
[16]
Finally,
given the manner in which the respondents have dealt with this
matter, it would be wholly inappropriate to make an order
that each
party pay their own costs as the respondents suggest. It would make a
mockery of their duty to be accountable.
[40]
In this regard, the preamble to the Act
states in terms that its aim is to set in place a new system of
immigration control which
ensures that:
‘
(a)
visas and permanent residence permits are issued as expeditiously as
possible and
on the basis of
simplified procedures and objective, predictable and reasonable
requirements and criteria, and without consuming
excessive
administrative capacity
; …
(d)
economic growth is promoted through the employment of needed foreign
labour
foreign investment is facilitated
, the entry of
exceptionally skilled or qualified people is enabled, skilled human
resources are increased, academic exchanges within
the Southern
African Development Community is facilitated and tourism is
promoted;…
(h)
the South African economy may have access at all times to the full
measure of needed contributions by foreigners…
’
(my emphasis)
[41]
The following order is made:
1.
The first respondent’s
decision dated 26 August 2021 to reject the first applicant’s
application for permanent residence
in terms of section 27(f) of the
Immigration Act 13 of 2002 (“the Act”), and consequently
that of the second applicant’s
in terms of section 26(b)
thereof, is reviewed and set aside;
2.
The respondents shall issue to the
applicants the permanent residence permits for which they applied on
24 January 2019 within
20 (twenty) working days from date
of this order, subject to payment by the applicants of the prescribed
amount as set out
in Government Notice 454 (Government Gazette 37716)
dated 3 June 2014, as well as section 25(3), section 25(4) and
section 28 of
the Act; and
3.
The costs of this application shall
be paid by the respondents in their official capacities on the scale
as between party and party,
jointly and severally, the one paying the
other to be absolved, and including any reserved costs orders.
J
I CLOETE
For
applicants
: Adv David
Simonsz
,
Instructed
by
: Le Roux Attorneys Inc, Megan Lee,;
For
respondents
: Adv Ntokozo
Mjiyako
,;
Instructed
by
: State Attorney, Sachin-Lee Sampson,
[1]
No.
13 of 2002.
[2]
“
Minimum
Net Worth in Respect of Application for Permanent Residence Permit”,
GN 454 in GG 37716 of 3 June 2014.
[3]
In
the notice of motion relief was also sought, to the extent
necessary, to condone their failure to exhaust internal remedies
in
terms of
s 7(2)(c)
of the
Promotion of Administrative Justice
Act 3 of 2000
, but the parties are also
ad
idem
that such relief is not required.
[4]
Promotion
of Access to Information Act 2 of 2000
.
[5]
See
fn 3 above
.
[6]
Director-General,
Department of Home Affairs and Others v Link and Others
2020 (2) SA 192
(WCC) at para [49].
[7]
Although
this email is marked ‘
without
prejudice’
the respondents clearly waived privilege since it was annexed to the
answering affidavit.
[8]
2003
(6) SA 38 (SCA).
[9]
Para
[10] referred to in the passage is not relevant for present
purposes.
[10]
See
for example
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA);
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd; Chairman,
State Tender Board v Sneller Digital (Pty) Ltd and
Others
2012 (2) SA 16
(SCA);
Dumani
v Nair and Another
2013 (2) SA 274
(SCA);
Department
of Transport and Others v Tasima (Pty) Ltd
2017
(2) SA 622
(CC) and further
Bullock
NO and Others v Provincial Government, North West Province and
Another
2004 (5) SA 262
(SCA);
Government
Employees Pension Fund and Another v Buitendag and Others
2007 (4) SA 2
(SCA); and
Chairpersons
Association v Minister of Arts and Culture and Others
2007 (5) SA 236
(SCA).
[11]
2019
(1) SA 204
(GJ) at para [12].
[12]
2014
(1) SA 604
(CC) at para [25]. See also
Westinghouse
Electrical Belgium SA v Eskom Holdings (Soc) Ltd and Another
2016
(3) SA 1
(SCA) at paras [44] to [47].
[13]
2010
(4) SA 327 (CC).
[14]
2015
(5) SA 245 (CC).
[15]
2001
(2) BCLR 1239
(C) at 1261F-G. See also
ZH
and Others v The Minister of Home Affairs and Another
15279/2021
[2022] ZAWCHC 150
(20 July 2022) at paras [48.6] to
[48.7].
[16]
Section
25(3)
provides that ‘
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
’
.
Section 25(4)
stipulates that ‘
for
good cause, as prescribed, the Director-General may attach
reasonable individual terms and conditions to a permanent residence

permit’.
Section 28
deals with the withdrawal of a permanent residence
permit.