About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 333
|
|
Arnaud v Minister of Home Affairs and Another (19/27099) [2020] ZAGPJHC 333 (28 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 19/27099
In
the matter between:
NGATCHOU DOMINIQUE
ARNAUD
Applicant
AND
THE MINISTER OF HOME
AFFAIRS
First Respondent
THE DIRECTOR GENERAL
DEPARTMENT
Second Respondent
OF
HOME AFFAIRS
JUDGMENT
REYENEKE
AJ
8.
The applicant is a Cameroonian national,
who is a South African permanent resident and holder of a South
African ID document.
He is the holder of a passport issued by
the Republic of Cameroon numbered […]1, issued on 19 August
2016 and valid until
19 August 2021.
9.
The applicant has brought an application
against the first and second respondents to have the “V-listing”
of his special
skill visa, permanent resident status and South
African identity document by the Department of Home Affairs reviewed
and set aside.
The Minister and Director General are cited in their
official capacities on behalf of the Department.
10.
He first arrived in South Africa during
2010 and obtained a visa for the purposes of studying. After
completing a course in
English he enrolled for B Tech Engineering at
the Vaal University of Technology and completed his course and
obtained his engineering
degree at the University of Pretoria.
He obtained accreditation from the Engineering Council of South
Africa and was employed
as intern with LOCHROUX Consulting Engineers.
11.
To allow him to be employed, he personally
applied and was granted a critical skills visa in terms of the
Immigration Act 13 of 2002
on 12 September 2016 with an expiry date
of 11 September 2018. The visa’s control number is […]8
and it was
issued in Pretoria against passport number […]9. He
subsequently applied for an was granted permanent residence in terms
of
section 27(b)
of the
Immigration Act on
5 April 2017 (“the
Act”). A South African ID document (for a non-citizen)
was issued in June 2017.
12.
On 13 February 2019 the applicant had to
travel to Cameroon to attend a family function. When he
presented his travel documents
to the immigration official at OR
Tambo Airport he was informed that his special skill visa, permanent
resident status and South
African identity document were “V-listed”,
that his passport was red flagged and that he could not travel.
He
was further informed that if he left South Africa, he would not be
granted entry back into South Africa. He was advised to
approach the head office in Pretoria of the Department of Home
Affairs. The effect of the V-listing is that his special skill
visa, permanent resident status and South African identity document
were null and void.
13.
The applicant instructed an attorney to
address a letter in terms of which the Department was required to
cancel the V-listing.
No response was received from the
Department, as a consequence of which this application was launched.
14.
The respondents opposed the relief and
alleged that the critical skill visa was fraudulent and false.
According to the answering
affidavit the Department’s Cameroon
mission was informed by the mission in Lubumbashi on 29 June 2017
that a critical skill
visa number A00531543, purportedly issued in
Lubumbashi, was fraudulent and false, which rendered the visa null
and void.
On 4 July 2017 a request was made and confirmed to
place the applicant on visa on “entry stop”. It also had
the consequence
that applicant’s status was red flagged and him
being V-listed.
The
further consequence of this is that the applicant would have been
declared a prohibited person in terms of
section 29(1)(f)
of the Act
and his permanent resident permit be regarded as null and void.
15.
The Department inferred that the critical
skill visa was obtained in a fraudulent manner, because the control
number was no longer
in use in Lubumbashi at the time when the visa
was issued on 8 July 2014.
16.
In the response on behalf of the
respondents it appears that Department during June 2017 sought to
verify the authenticity of the
applicant’s critical skill visa
and assessed to have been fraudulently obtained under number […]3
on 8 July 2014.
The visa number which was regarded to have been
fraudulently obtained does not correlate with any of the visa numbers
referred
to in this application and was ostensibly issued at a time
when the applicant would still have been studying.
17.
The allegations of fraud are confusing,
contradictory and does not support the inference that the present
critical skill visa issued
to applicant was obtained in a fraudulent
manner. On the face of it the Lubumbashi embassy referred to a
visa bearing a different
number to the one issued to the applicant.
Furthermore the critical skill visa relied on by applicant was issued
on September
2016 whereas the so-called fraudulent visa was issued in
July 2014.
18.
This confusion could have been avoided if
the Department had acted efficiently and timeously. On its own
version it was already
aware in June 2017 of the allegations of fraud
and had in July 2017 V-listed the applicant. Notwithstanding
this, no steps
were taken to give effect to the decision or to
further investigate the matter beyond V-listing the applicant.
19.
In argument the respondents did not seek to
address the lawfulness of the V-listing but, by way of a point
in
limine
, sought to argue that the
application should be dismissed because the applicant failed to
exhaust the internal remedies available
to him as provided for in
section 8
of the Act.
20.
Clause 8(3) of the Act requires that any
decision in terms of the Act that materially and adversely affects
the rights of any person,
should be communicated to that person in
the prescribed manner and shall be accompanied by the reasons for
that decision.
21.
In terms of clause 8(4) a person aggrieved
by a decision may within 10 working days apply to the second
respondent (the Director
General) for a review or appeal of the
decision and may in terms clause 8(6) apply to the first respondent
(the Minister) for a
review or appeal, if dissatisfied with the
decision of the Director General.
22.
The decision of July 2017 to V-list the
applicant is a decision as contemplated in clause 8(3). The
Department failed to communicate
the decision to the applicant or
provide reasons for its decision at the time when the decision was
made or in 2019 when the applicant
tried to leave the country.
The Department also did not notify the applicant of his remedies in
terms of the Act. The
Department had a further opportunity to
provide reasons for the decision and to notify the applicant of the
available review/appeal
procedures but persisted in its failure
notwithstanding the applicant’s attorney’s letter.
23.
The failure to comply with the requirements
of clause 8(3 left the applicant with a decision devoid of reasons
and no practical
choice but to approach the Court for relief.
Any review or appeal as contemplated in
section 8(4)
is premised on
the basis that reasons are made available prior to lodging a review
or appeal.
The
respondents cannot insist on compliance with the internal remedies
provided for in the Act in circumstances where itself has
failed to
do so. The applicant was therefore entitled to approach this
Court directly.
24.
The conduct of the Department is not only
in breach of the Act but also constitutes a breach of the
Constitutional rights to administrative
action that is reasonable and
procedurally fair.
25.
The applicant is entitled to have the
v-listing set aside having regard to the Department’s failure
to provide a proper justification
for the V-listing backed up by
supporting affidavits and documents. The Department also did not
advance any argument in support
of the decision at the hearing of the
matter.
The
following is made an order of this Court:
1
The decision by the Department of Home
Affairs to V-list the applicant’s special skill visa, permanent
resident status and
South African identity document is review and set
aside;
2
The First and Second Respondents, in their
official capacities, are directed to pay the applicant’s costs
on the High Court
scale as between attorney and attorney.
________________________
J.J
REYNEKE AJ
Acting
Judge of High Court
Gauteng
Local Division, Johannesburg
APPEARANCES:
Heard
: 20 May 2020
Delivered
:
28
August 2020
Applicant
:
Adv.
Shomane Mothiba
TJP Attorneys
tjpattorneys@gmail.com
Respondent
:
Adv.
JMV Malema
State Attorney
Johannesburg
advocate.malema@gmail.com