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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
(Western Cape Division, Cape Town)
Case No.: 9940/2022
In the matter between:
NOEMIE LOLINGA BIHOMBEL First Applicant
TYSON LIKUTU MAKALI Second Applicant
And
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR-GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS Second Respondent
Date of hearing: 22 February 2024
Date of Judgment: 6 March 2024
Before the Honourable Ms Justice Meer
JUDGMENT DELIVERED THIS 6TH DAY OF MARCH 2024
MEER, J
[1] The Applicants, a married couple from the Democratic Republic of Congo
(“DRC”) apply in terms of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”) to review and set aside the decisions of officials of the Department of Home
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Affairs (“the Department”), and subsequent appeal decisions by the Direc tor General
and Minister of Home Affairs (“the DG and Minister”). The decisions determined that
the First and Second Applicants were prohibited persons in terms of Section 29(1)(f)
of the Immigration Act 13 of 2002 (“the Act”) , for being in possession of fraudulent
visas. The decisions collectively have the effect of prohibiting the Applicants from
South Africa. The Applicants also seek a declaration that they are not prohibited
persons under section 29(1)(f) of the Act. A condonation application by the First
Applicant for the late filing of her judicial review application was unopposed and
granted at the hearing.
[2] In support of their case, the Applicants contend inter alia, that:
2.1 They have a right to a prior fair hearing before being declared
prohibited persons in terms of section 29(1)(f) and they were denied
such right.
2.2 They were not complicit in fraudulent activities in obtaining the visas.
The provisions of section 29(1)(f) thus could not have been invoked
against them. For section 29(1)(f) to have been invoked , the
Respondents had to prove th at they were guilty of fraud which the
Respondents did not do.
[3] In opposing the application the Respondents contend, inter alia, that:
3.1 The Applicants had no legal right to prior hearing s by the Department’s
officials before the invocation of the provisions of section 29(1)(f) of the
Act declaring them to be prohibited persons;
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3.2 The decision of the Department’s officials is not an administrative act
susceptible to review;
3.3 The appeal decision of the DG has been superseded by the decision of
the Minister on appeal, is no longer operational and is not susceptible
to being reviewed by this court;
3.4 The Minister’s decision on appeal is lawful and rational.
LEGAL FRAMEWORK
[4] The relevant provisions of the Act are contained in sections 29(1)(f) which lists
who are prohibited persons, and sections 8 (4) and (6) of the Act which provide for
appeals by prohibited persons to the DG and Minister respectively.
[5] Section 29 of the Act states:
“29. Prohibited persons
(1) The following foreigners are prohibited persons and do not qualify for a port of
entry visa, admission into the Republic, a visa or a permanent residence permit:
(a) Those infected with or carrying infectious, communicable or other
diseases or viruses as prescribed;
(b) anyone against whom a warrant is outstanding or a conviction has been
secured in the Republic or a foreign country in respect of genocide,
terrorism, human smuggling, trafficking in persons, murder, torture, drug -
related charges, money laundering or kidnapping;
(c) anyone previously deported and not rehabilitated by the Director -General
in the prescribed manner;
(d) a member of or adherent to an association or organisation advocating the
practice of racial hatred or social violence;
(e) anyone who is or has been a member of or adherent to an organisation or
association utilising crime or terrorism to pursue its ends; and
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(f) anyone found in possession of a fraudulent visa, passport, permanent
residence permit or identification document.
(2)The Director -General may for good cause, declare a person referred to in
subsection (1) not to be a prohibited person.”
[6] The Immigration R egulations (published in Government Notice R413 in
Government Gazette 37679 of 22 May 2014, provide at Regulations 26(6)-(7) that:
“(6) The Director -General shall in declaring a person not to be prohibited
person,
consider the following factors:
(a) The reasons for the prohibition;
(b) The seriousness of the offence committed;
(c) Representation made by the prohibited person, which should include a
Police Clearance Certificate.
(7)The Director -General shall, upon making a decision as contemplated in
section 29(2) of the Act, provide written reasons for such decision.”
[7] The relevant parts of section 8 of the Act provide:
“8. Review and appeal procedures
(1) An immigration officer who refuses entry to any person or finds any person
to be an illegal foreigner shall inform that person on the prescribed form that he
or she may in writing request the Minister to review that decision and -
(a) if he or she arrived by means of a conveyance which is on the point of
departing and is not to call at any other port of entry in the Republic, that
request shall without delay be submitted to the Minister; or
(b) in any other case than the one provided for in paragraph (a), that request
shall be submitted to the Minister within three days after that decision.”
(2) a person who was refused entry or was found to be an illegal foreigner
and who has requested a review of such a decision –
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(a) in a case contemplated in subsection (1)(a), and who has not received
an answer to his or her request by the time the relevant conveyance
departs, shall depart on that conveyance and shall await the outcome
of the review outside the Republic; or
(b) in a case contemplated in subsection (1)(b), shall not be removed from
the
Republic before the Minister has confirmed the relevant decision.
(3) Any decision in terms of this Act, other than a decision contemplated in
subsection
(1), 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.
(4) An applicant aggrieved by a decision contemplated in subsection (3) may,
within 10
working days from receipt of the notification contemplated in subsection (3),
make
an application in the prescribed manner to the Director -General for the
review or
appeal of that decision.
(5) The Director -General shall consider the application contemplated in
subsection (4),
whereafter he or she shall either confirm, reverse or modify that decision.
(6) An applicant aggrieved by a decision of the Director -General contemplated
in
subsection (5) may, within 10 working days of receipt of that decision,
make an
application in the prescribed manner to the Minister for the review or appeal
of that
decision.
(7) The Minister shall consider the application contemplated in subsection (6),
whereafter he or she shall either confirm, reverse or modify that decision.
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[8] In terms of the legislation thus, a prohibition under section 29 bans a foreigner
from entering or remaining in South Africa. The ban is permanent, unless and until
the ban is up lifted by the Director -General for good cause in terms of section 29(2).
Moreover a decision that a person is a prohibited person may be appealed to the DG
and thereafter to the Minister in terms of sections 8(4) and (6).
BACKGROUND FACTS
The First Applicant
[9] On 18 April 2016, the First Applicant was granted a temporary asylum
seeker’s permit authorizing her to work in South Africa . She obtained employment
and thereafter obtained a work visa through an agent recommended by work
colleagues. Her employer queried the legitimacy of the work visa as the date of issue
was reflected as 2015. After verification, on 16 August 2016, the Department
reported that the work visa was not issued by it and was a fraudulent document.
[10] The First Applicant did not mention the 2015 work visa in her founding papers,
because, she says, this document was only in her possession for a few days , she
forgot about it, and it was promptly superseded by her renewed asylum seeker ’s
visa. The visa was never raised again by any Depart ment official or in any
correspondence and was never seen again by her . At no stage was there ever any
evidence, investigation or finding that she was aware of or complicit in any fraud
committed by the agent who obtained the visa for her, she adds.
[11] Although in their answering affidavit the Respondents sought to defend their
decisions by emphasizing the dubious nature of the 2015 visa and the fact that the
First Applicant did not mention it in her founding affidavit, none of the impugned
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decisions referred to the 2015 visa as a factor on which the decisions were based ,
and as pointed out by the Applicants it was not even included in the Rule 53 record.
It cannot, contend the Applicants be relied upon to validate the decisions ex post
facto.
The First Applicant’s 2016 visa:
[12] The First Applicant then engaged an agent , Mr Mosenga, based in
Lubumbashi, DRC to assist her with another work visa application and paid him
1 500USD for his services. According to the Applicant, the application and Mr
Mosenga appeared to be legitimate and proper in all respects. Mr Mosenga informed
her that her application had been granted, whereafter she relinquished her asylum
visa at OR Tambo International Airport , and departed from South Africa for the DRC
to collect her work visa.
[13] She met Mr Mosenga at the South African Con sulate General office in
Lubumbashi, gave him her passport and he obtained her work visa for her. This ,
according to the Applicant was not unusual as many people in the DRC use agents
to enter public offices in order to avoid waiting in queues. Her work visa was valid
until 2 May 2019. According to the First Applicant, she was never aware of any
impropriety or irregularity regarding the 2016 visa. She states that for years she
travelled on this visa and never encountered any difficulty with it from immigration or
custom officials.
The First Applicant’s 2018 visa:
[14] On 28 November 2017, an application by the First Applicant for a critical skills
visa was rejected by the Department on the following basis:
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“(1) Comments: 1. You have submitted a fraudulent visa according to our
records a visa with control number b[...] and trp number j[...] was issued to
someone else. In terms of section 49(14) of the immigration act any person
who for the purpose of entering or remaining in, or departing from, or of
facilitation or assisting the entrance into, residence in or departure form, the
republic, whether in contravention of this act or not, commits any fraudulent
act or makes any false representation by conduct, statement or otherwise,
shall be guilty of an office and liable on conviction to a fine or to imprisonment
not exceeding eight years.”
[15] This rejection is referred to by the Applicants as the initial decision by
Department Officials and is the first decision sought to be set aside on review. It
would appear to be on the basis that the 2016 work visa obtained for her by Mr
Mosenga, was fraudulent. According to the Applicant this was the first time she
learnt that the 2016 visa was problematic. She queried this with Mr Mosenga who
advised her that there was a mistake and she should return to Lubumbashi to
resolve the problem. She also emailed the Department to query the finding and
engaged a firm, Penguin Immigration to assist her . According to her the Department
never reverted in substance to any of her enquiries. On 3 November 2018, she left
South Africa for the DRC where she met Mr Mosenga who assisted her in obtaining
a new visa which she refers to as the 2018 visa. When she went to the airport in
Lubumbashi, the officials there told her that this visa too was fake. The First
Applicant then filed criminal charges against Mr Mosenga. At the request of the
police in Lubumbashi, she asked Mr Mosenga to meet her near the Consulate and
when he did, he was arrested in her presence.
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[16] As thanks for h er assistance, she states, the s tation commander assured her
that he would personally arrange for her to receive a new visa at the Consulate in
Lubumbashi, and to have any restriction against her name withdrawn. The Consulate
assisted the First Applicant with a new visa application and removed the 2018 visa
from her passport. However , they claimed not to be able to assist her with removing
any restrictions against her name. The First Applicant was granted a new visa on 19
February 2019, one she refers to as the 2019 visa.
[17] The First Applicant then sought the services of a Mr Kajombo in the DRC to
assist her with an application in terms of section 29(2) of the Act to uplift the
prohibition against her. He informed her that her application was successful and the
First Applicant flew to OR Tambo International Airport on 24 February 2019. She
was however refused entry and informed that prohibitions against her name
remained on the Department’s Movement Control System.
[18] The First Applicant complained to Mr Kajombo who reiterated that the
prohibitions against her had been uplifted and that the Department records had
probably not yet been updated to reflect this. The Applicant then returned to South
Africa via Zimbabwe overland, because, according to her, the Applicants had run out
of funds to pay for another flight. She was permitted to re -enter the country without
difficulty on 13 March 2019.
[19] Once in the country she engaged the services of Le Roux A ttorneys, who, on
4 February 2020 brought a second application in terms of section 29(2) of the Act to
have the prohibition against her name uplifted. The application, which sets out fully
the above history and emphasizes that she was not complicit in any fraud, was
rejected.
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[20] The First Applicant then appealed to the Director General in terms of Section
8 (4) of the Act. Her appeal was dismissed by the Director -General on 4 January
2021. The Director-General’s reasoning in refusing the appeal was as follows:
“You submitted a fraudulent work visa in support of your application.”
Your fraudulent work visa was issued on 2016 -05-03 while you were on
asylum permit in South Africa and you were not the ordinary resident in
Lubumbashi at the time of its issuance.”
[21] The First Applicant thereafter appealed to the Minister in te rms of section 8(6)
of the Act on 18 April 2021 . This appeal was dismissed on 29 April 2021. The
Minister’s reasons were:
“The representation in respect of your request to review your prohibition has
been considered and was unsuccessful based on the following reason:
- Your husband’s Permanent resid ence permit does not exist on o ur
Departmental system, and therefore he cannot be recognized as legal in
the country.
- At the time of the issuance of your visa, you were on an Asylum seekers
permit in the Republic. You never submitted your application in person or
interviewed and you were not an ordinary resident in your country of origin,
as required in terms of regulation 9 of the Immigration Act.
- As a person on an Asylum seekers permit you should ae renounced your
status, and departed from the country to have an opportunity to apply for a
visa in the country of your origin.”
[22] The first Applicant’s comprehensive appeal submissions ov erlapped
substantially with her Section 29 (2) application, setting out her history and
innocence in relation to any fraud. The First Applicant’s history and background as
related above were not disputed by the Respondents albeit their implying that she
was complicit in obtaining the fraudulent documents.
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The Second Applicant’s history and background:
[23] The Second Applicant, also a national of the DRC was studying in Cape Town
in 2013. He applied for a permanent resident permit through a friend, Mr Nzakom ba,
and obtained it. The visa was allegedly issued by the Department’s official, one Mr
Mabaso. The Second Applicant paid Mr Nzakomba, R13 000-00 for the permit.
According to the Second Applicant, at no stage was he aware that there was
anything irregular about the application. Once he obtained the permit, the Second
Applicant travelled internationally many times without difficulty and also presented
the permit without difficulty to the Department when registering the birth of the
Applicants’ minor daughter.
[24] The Second Applicant of his own accord, repeatedly, according to him,
attended on the Department and on the Immigration Inspectorate in pursuit of, inter
alia, a South African identification document. It was never suggested to him that the
permanent residence was irregular.
[25] Also of his own accord, the Second Applicant briefed his current attorneys to
have his permanent residence verified. On 19 May 2021, a letter from the
Department was received stating:
“This office has no record that he applied for or received permanent residence
in this country.”
[26] Further enquiries revealed on 4 June 2021, for the First time that the Second
Applicant had been declared a prohibited person in terms of section 29(1)(f) of the
Act. As with the First Applicant he was afforded no hearing, notice or reasons prior to
his prohibition. On 22 July 2021, the Second Applicant applied to the DG in terms of
Section 29 (2) to overturn his prohibition . His application set out his history and
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innocence as referred to above. The application was rejected on 1 September 2021.
The DG’s reasons for the rejection were as follows:
“There is no evidence in your representation to prove that you were a victim of
fraud.
The fact that you travelled in and out of the country with your permanent
residence permit uninterrupted does not exempt you from the provisions of
section 48 of the Immigration Act 13 of 2002, which provides that:
‘No illegal foreigner shall be exempt from a provision of this Act or be allowed
to sojourn in the Republic on the grounds that he or she was not informed that
he or she could not enter or sojourn in the Republic or that he or she was
admitted or allowed to remain in the Republic through error or
misrepresentation, or because his or her being an illegal foreigner was
undiscovered.’”
[27] Thereafter, the Second Applicant appealed to the Minister in terms of section
8(6) of the Act. His comprehensive submissions on appeal overlapped substantially
with the Section 29 (2) application. This appeal was dismissed on 14 December
2021 for the following reasons as set out by the Minister:
“Your stay in the country was on the basis of deception, you were found in
possession of a fraudulent Permanent Residence Permit.
You cannot claim that you had the bona -fide belief that you possessed a
lawful permanent residence status after failing to provide proof to confirm that
the alleged person (friend “Mr.Nzakomba”) did exist. Your claims that you
dealt with Mr Mabaso are also lacking veracity with no such name
corresponding with the dates of your claims.
Your family members are also in the country illegally.
You have not presented any new facts to justify the upliftment of your
prohibition. You are therefore a prohibited person and do not qualify for a port
of entry visa, admission into the Republic, a permanent residence permit of
any other visa.”
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I note that as with the First Applicant, the Second Applicant’s history and background
as related above, were not disputed by the Respondents albeit their accusation that
he was complicit in obtaining the fraudulent documents.
FINDING
Review of the Initial D ecisions by officials within the Department of Home
Affairs prohibiting the Applicants from South Africa in terms of section 29(1)(f)
of the Immigration Act 13 of 2002:
[28] The first question for consideration is whether the initial decisions of officials
within the Department under Section 29 (1) (f) of the Act declaring the Applicants to
be prohibited persons , constitute administrative actions under PAJA , in respect of
which the Applicants were entitled to prior fair hearings before being d eclared
prohibited persons and to adequate reasons. If the answer to this enquiry is in the
affirmative, then the initial decisions against both Applicants fall to be reviewed and
set aside. Should this happen, as was contended by Mr Simonz for the Applicants
and not contested by Mr Titus for the Respondents, it would follow that the appeal
decisions, which are based upon and replicate the initial decisions, would also fall to
be set aside.
[29] Section 1 of PAJA defines an administrative action and states in relevant part:
1. “Definition-- In this Act, unless the context indicates otherwise—
“administrative action” means any decision taken, or any failure to take a
decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
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(ii) exercising a public power or performing a public function in terms of
any legislation; or
(b) a natural or juristic person, other than an organ of state, when exercising a
public power or performing a public function in terms of an empowering
provision,
which a dversely affects the rights of any person and which has a direct,
external legal effect ,…”
[30] In Minister of Defence and Military Veterans v Motau and O thers1, the
Constitutional Court distilled the definition of the section into seven elements:
“The concept of ‘administrative action’, as defined in section 1(1) of PAJA, is the
threshold for engaging in administrative-law review. The rather unwieldy definition
can be distilled into seven elements: there must be (a) a decision of an
administrative nature; (b) by an organ of State or a natural or juristic person; (c)
exercising a public power or performing a public function; (d) in terms of any
legislation or an empowering provision; (e) that adversely affects rights; (f) that has a
direct, external legal effect; and (g) that does not fall under any of the listed
exclusions.”2
[31] In Koyabe and Others v Minister of Home Affairs and Others 3 which also
concerned a challenge to a Section 29 (1)(f) prohibition decision, the Court in effect
treated a decision in terms of Section 29 (1)(f) as an administrative decision . The
relevant extracts from Koyabe which bear this out were aptly noted by this Court in
Najjembe v the Minister of Home Affairs and Another4 :
“[23] In Koyabe and Others v Minister for Home Affairs and Others , the
Constitutional Court had the occasion of dealing with applicants in respect of
whom an investigation by the Department revealed that they had previously
obtained South African identity documents through fraudulent means, and
1 2014 [5] SA69 CC.
2 Para 33.
3 2010(4) SA 327 CC
4 [2022] ZAWCHC 199 (13 October 2022) at para 23.
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they were accordingly declared prohibited persons in terms of section 29(1)(f)
of the Act, resulting in their disqualification for permanent residency. The
Court found against the applicants on the basis that they had failed to exhaust
their internal remedy under section 8 of the Act read with section 8 of the Act
read with section 7(2) of PAJA before launching their review application. The
significance of Koyabe is that the Court related the prohibition by the
Department in terms of section 29(1) of the Act as administrative action. This
is borne out by the following paragraphs from the judgment:
‘Section 8 thus establishes two channels for review. One route is created
under section 8 (1)and the other under section 8 (4) The procedure applicable
in a particular case will depend on the nature of the administrative decision…
(my underlining)’
And also paragraph 62 where it was held:
“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 i mportant 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 decisions declaring them
illegal foreigners . It is excessively over formalistic and and contrary to the
spirit of the Constitution for the respondents to contend that under section 8
(1) they were not obliged to provide the applicants with reasons. ’(My
underlining)
[24] The dictum in paragraph 50 of Koyabe, namely that “ section 8 of the Act
provides for internal administrative review and appeal procedures regarding
decisions taken in terms thereof for those seeking to challenge administrative
decisions”, puts it beyond doubt that the relevant actions under the Act
constitute administrative actions.”
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[32] The Court in Koyabe found against the Applicants there, on the basis that they
had failed to exhaust their internal remedies under Section 8 of the Act before
launching the review application. In Koyabe, it was not suggested by the Minister
that a Section 29 decision was not an administrative act ion. Indeed, this was a
premise, and a necessary part of the logic of the case is that a section 29 decision is
an administrative one.
[33] In Ndlovu and another v Director General Department of Home Affairs and
Another5, a section 29 (1)(f) decision was also categori zed as administrative action.
At para 22 (iii) it was said:
“The respondents’ failure to provide adequate notice of the en visaged
administrative action to Ndlovu is not explained anywhere in the respondents ’
answering affidavit. The respondents ’ conduct was procedurally unfair ,
unlawful and falls to be set aside on this basis alone.”
[34] Further support for a Section 29 (1)(f) decis ion being administrative action can
be found in Sect ion 7 (1)(f) of the Act which empowers the Minister to make
regulations relating inter alia to the conducting of an enquiry of persons suspected of
being prohibited persons.
[35] In support of the contention that a section 29 (1 ) (f) decision is not
administrative action, but applies ex lege and operates automatically, Mr Titus for the
Respondents relied on Minister of Defence and Military Veterans v Maswanganyi 6.
There it was held7 that section 59(1) (d) of the Defence Act 42 of 2002 , which
provides that the service of a member of the Regular Force is terminated if he is
sentenced to a term of imprisonment by a competent civilian court without the option
5 [2023] ZAGPPHC 2280 (11 July 2023).
6 2019 (5) SA94 (SCA).
7 At para 13.
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of a fine , operates as a matter of law and no further decision was required to effect
the termination. Maswanganyi is clearly distinguishable. Section 59(1) (d) of the
Defence Act only comes into effect pursuant to a hearing before a court in a trial. Mr
Mawanganyi was discharged from service after he had a full trial during which he
was convicted for rape and sentenced after reasoned findings by a court. Section 59
(1) (d) of the Defence Act, is thus clearly distinguishable from Section 29 (1) (f) of the
Immigration Act. If anything, section Section 59 (1) (d) of the former Act, in providing
for termination only after a fair hearing, favours the Applicants’ stance.
[36] It remains to be said that the initial decisions are imbued with the seven
elements of an administration act identified in Motau supra. They were decisions of
an administrative n ature by persons employed in a state d epartment, exercising a
public power in terms of Section 29 (1) (f) of the Immigration Act 13 of 2002, t hat
adversely affected rights, decisions which had a direct external legal effect and were
not shown to fall under any exclusions.
[37] Thus, and in view of all of the above the question whether the initial decisions
of officials within the Department under Section 29 (1) (f) of the Act declaring the
Applicants to be prohibited persons, constitute administrative actions under PAJA ,
must be decided in the affirmative.
[38] In terms of Sections 3(2) and 5 (1) of PAJA, administrative actions must be
procedurally fair. A person affected by any administrative action is entitled to
adequate notice of the nature and purpose of the proposed action, a reasonable
opportunity to make representations, a clear statement of the action, adequate notice
of any right of review or internal appeal, as well as adequate notice of the right to
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request reasons, and reasons in terms of Section 5. 8 In other words, such person in
entitled to a right to be heard. The grounds upon which the Applicants allege the
decisions are defective and warrant being set aside under review appear below and
must be considered against this standard.
Absence of notice of the decision and fair hearing
[39] The importance of the audi principle has been emphasized by our courts in a
number of cases. In Zondi v MEC for Traditional and Local Government Affairs and
others 2005 (3) SA 589 (CC) it was stated:
“It is a fundamental element of fairness that adverse decisions should not be
made without affording the person to be affected by the decision a reasonable
opportunity to make representations.”
I agree with the Applicants that by not receiving notice or not being afforded an
opportunity to make representations before the decision , the process by which the
Applicants were declared prohibited persons was unfair and unlawful, being contrary
to PAJA.
[40] Disquietingly, there does not even appear to be a prescribed notice in terms
of Section 29 (1) (f) notifying persons that they have been declared prohibited, or of
their appeal rights under section 8 of the Act. The Applican ts certainly did not get
such.
Absence of reasons for initial decision
88 Section 3 (2) (b) (i)to(v); Section 5 (1).
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[41] The initial decision was not accompanied by reasons. It is a well-established
requirement that adequate reasons must be given f or administrative decisions. In
Koyabe supra the Court said9:
“Providing people whose r ights 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.”
Assumption in initial decision that Applicants were complicit in fraud
[42] A further defect in the initial decision is that it assumed that the Applicants
were complicit in obtaining fraudulent documents without more. In Najjemba supra it
was held that it could never have been the intention of the legislature that section
29(1)(f) should apply to persons who are inn ocent of wrongdoing. T his section , it
was said, cannot apply to an innocent party who has been found in possession of a
fraudulent visa or to a person who was unaware and not complicit in obtaining such
a visa. The court held that it was incumbent for both the Director -General and the
Minister to determine whether the Applicant was complicit in the acquisition of the
fraudulent work visa.10 This is apposite in the instant case.
[43] I agree with the Applicants that there is a lack of evidence of the Applicants’
complicity in or knowledge of any fraudulent activity. The fact that they paid agents to
9 At para 62. See also Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and others v
Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at para 40, Director-General, Department of Home Affairs and
Others v Link and Others 2020 (2) SA 192 (WCC) at para 29.
10 Najjemba at para 27.
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obtain their visas or that the First Applicant may have fallen prey to agents before ,
does not in my view, suffice. Nor did the Department gather any such evidence and
erred in my view in not so doing.
[44] Mr Simonz referred me to Goldberg v Director of Public Prosecutions: Western
Cape11 where Rogers J, as he then was, usefully gave consideration to the phrase
‘’found in possession’. After stating that possession comprises a physical element of
control together with a mental element, he went on to say12:
“A person cannot possess unwittingly, ie without the necessary mental element; but
if it is shown that he possessed with the necessary mental element, it may yet
appear that he did not have the necessary mens rea (which depending on the form
of mens rea required by the statute ), might require the state to prove that the
accused knew that his possession of the item was unlawful or that he should
reasonably have been aware thereof.”
[45] The analysis in Goldberg , as Mr Simonz , submitted, illustrates that the
meaning of “found in possession” , be it of a fraudulent document as in this case, or
of ivory, as in Goldberg supra is no simple matter. The Applicants ’ state of mind as
alleged by them, that they possessed the documents in good faith, was relevant and
bore investigation, which did not occur prior to the initial decisions.
Absence of investigation
[46] As is also contended by the Applicants the initial decisions were made without
a fair, proper or ratio nal investigation into how the allegedly fraudulent documents
came to be issued and who is at fault. The re is no evidence of an investigation into
the First Applicant’s undisputed participation in a police operation in t he DRC in
11 2014 (2) SACR 57 (WCC).
12 At para 72.
21
which the agent responsible for her fraudulent visas was arrested. In support of her
version the First Applicant has provided receipts for her visa application, emails to
the Consulate and affidavits filed with the police in Lubumbashi. It is alleged by the
Applicants that even when Department officials contacted the Consulate in 2023 to
obtain evidence for their further explanatory affidavits, they simply did not enquire
about these events.
[47] These facts, contend the Applicants would strongly support her claims of
innocence and may even demonstrate that her 2019 visa was not fraudulent and
was in fact issued to her by the Consulate.
[48] With regard to the Second Applicant, it is contended that he has provided
whatever evidence he was able to about Mr Nzakomba, the agent he utilized. T he
Department claims that because the Second Applicant did not provide the passport
number of Mr Nzakomba, it could do nothing. The Applicants retort that it is not
explained why the Department in its further explanatory affidavits could not obtain Mr
Nzakomba’s passport details from its own records.
[49] In AK and others v Minister of Home Affairs and others 13 in similar
circumstances, a Russian citizen was found in posse ssion of a fraudulent visa and
was declared to be prohibited. She successfully challenged her prohibition , blaming
an agent named “Aksu ” for obtaining a fraudulent document without her knowledge.
In upholding her challenge this court stated appositely:
“Apart from harbouring a suspicion that the firs t applicant may have been
complicit in Aksu’s fraudulent conduct, no evidence has been presented by
the DG to controvert or gainsay the first applicant’s testimony. A mere
13 2023 (3) SA 538 (WCC)
22
suspicion, however, even if genuinely held, cannot be elevated to a finding of
fact without more.”14
“The question that really needs to be asked is why the Department did not
pursue Aksu or investigate the circumstances in which she managed to obtain
the visa. The Applicant provided all the evidence at her disposal relating to
her interactions with Aksu. It is difficult to ascertain what more she could, or
should have done.”15
[50] I agree with the Applicants that similar logic applies here and that a decision
which bans the Applicants from a country in which they have built their lives for over
a decade, cannot be made without a proper investigation. As the Applicants contend,
prohibition is a devastatingly punitive sanction. A prohibited person is rendered
unemployable16, cannot be harboured17 and cannot remain in South Africa. For such
a p unishment to be imposed contrary to the PAJA yardstick is patently unjust and
unfair.
[51] Disquietingly, an explanatory affidavit of Mr Martins Masilela, an immigration
officer in the Department involved in the first decision, asserts incorrectly that the
Second Applicant’s permanent residence permit was issued in terms of the Aliens
Control Act 96 of 1991 and hence must be fraudulent . This is incorrect. It is
apparent from this visa which forms part of the papers that it was issued under the
Immigration Act. He asserts further that the Second Applicant had been the holder
of three study visas . This too is incorrect. The previous study visas, also part of the
papers were five in number.
14 para 27.
15 Para 28.
16 Section 38 of the Act.
17 Section 42 (1) (vii)of the Act.
23
[52] The Respondents contend that because affected persons have rights to
appeal in terms of section 29(2) they need no administrative rights under section
29(1)(f). This is no answer. As was aptly said in Democratic Alliance v Minister of
Home Affairs and Another 18, “No unjust exercise of public power can be condoned
merely because one can appeal against It.”, and in Helen Suzman Foundation and
Another v Minister of Home Affairs 19, “fair notice and a lawful hearing should occur
before a decision is taken, not afterwards.”
[53] In view o f all of the above, the initial decisions against both Applicants were
administrative act ions as defined in PAJA which simply did not pass muster when
held up to the standard s prescribed at sections 3(2) and (5) of PAJA ,referred to
above. The Applicants were given neither adequate notice of the decision or the right
to appeal, were not afforded an opportunity to make representations nor were they
given adequate reasons. The initial decisions thus fall to be reviewed and set aside.
Flowing therefore it would follow that the appeal decisions of the DG and Minister ,
which are based upon the initial decisions also fall to be set aside . It is therefore not
necessary for me to consider those decisions further.
[54] Mr Simonz correctly contended that once the impugned decisions are set
aside, it would follow as a matter of logic and law that the Applicants are not
prohibited persons. A declaratory order which states in clear and simple terms that
the Applicants are not prohibited persons, he submitted would assist the Applicants
in their applications to the Department for future visas and /or permits. Absent such
a declaration the officials considering those applications may well be unsure of the
18 [2023] ZASCA 97 (13 June 2023) at para 26.
19 [2023] ZAGPPHC 490 (28 June 2023) at para 79-84.
24
Applicants’ status to their prejudice. It would seem to me in the circumstances that a
declaratory order is required.
[55] As the Applicants have succeeded in this application they are entitled to an
order that the Respondents pay the costs of this litigation, jointly and severally, the
one paying the other to be absolved.
[56] I order as follows:
1. The decision of unknown officials in the employ of the Respondents to
determine the First Applicant to be prohibited in terms of section 29(1)(f)
of the Immigration Act 13 of 2002 (“the Act”) is reviewed and set aside;
2. The decision of unknown officials in the employ of the Respondents to
determine the Second Applicant to be a prohibited person in terms of
section 29(1)(f) of the Act, is reviewed and set aside;
3. The Second Respondent’s decision received on 4 January 2021 to reject
the First Applicant’s application in terms of s ection 29(2) of the Act, is
reviewed and set aside.
4. The Second Respondent’s decision received on 1 September 2021 to
reject the Second Applicant’s application in terms of section 29(2) of the
Act is reviewed and set aside.
5. The First Respondent’s decision received on 29 April 2021 to reject the
First Applicant’s appeal in terms of section 8(6) of the Act read with sectio n
29(2) of the Act is reviewed and set aside.
6. The Frist Respondent’s decision received on 14 December 2021 to reject
the Second Applicant’s appeal in terms of section 8(6) of the Act read with
section 29(2) of the Act is reviewed and set aside;
25
7. The First Applicant’s late filing of her judicial review application in terms of
section 9 of the Promotion of Administrative Justice Act 3 of 2000 (“PJA”)
is condoned.
8. It is declared that the First Applicant is not a prohibited person in terms of
section 29(1)(f) of the Act;
9. It is declared that the Second Applicant is not a prohibited person in terms
of section 29(1)(f) of the Act.
10. The costs of this application shall be paid by the Respondents, jointly and
severally, the one paying to other to be absolved.
MEER, J
Appearances:
Applicant’s Counsel: D Simonz
Instructed by: Boshoff Attorneys
Respondent’s Counsel: M Titus
Instructed by: State Attorney