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[2017] ZAGPPHC 180
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Huijskens and Another v Minister of Home Affairs (9745/2017) [2017] ZAGPPHC 180 (23 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23/03/2017
CASE NO: 9745/2017
Reportable: No
Of interest to other judges: Yes
In
the application between:
ADRIANUS
CORNELIUS MARIAN
HUIJSKENS
1
st
Applicant
MARTINA
JACQUELINE WINTER
2
nd
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
Respondent
JUDGMENT
DAVIS,
AJ:
[1]
The First Applicant is a citizen of the Netherlands. He is married to
the Second Applicant,
a German citizen. They, together with their 14
and 7 year old children are currently legally in the Republic of
South Africa in
terms of an intra-company transfer work permit. The
intra-company transfer work permit expires on 31 March 2017.
[2]
On 9 February 2017 the Applicants launched their present urgent
application in terms
of which they
inter alia
claim an order that the Respondent be ordered
to nominate an agent or official to receive the Applicants'
application for permanent
residency
"on
other grounds"
as contemplated in
Section 27(c)
of the
Immigration Act, 13 of 2002
, and that they be
entitled to remain in South Africa pending "...
the
final determination of the application in terms of Section n27(c)
and/or other further steps taken in terms of the Act and/or
a
judicial review or any other legal action brought by the Applicants
pertaining to the application for permanent residence and/or
the
grant of
a
general
work permit to the First Applicant”.
They
also claim the issue of a
"permit or
a
letter"
permitting
them to travel abroad and to return to South Africa once the
intra-company transfer work permit has lapsed.
[3]
FACTUAL BACKGROUND:
The Applicants allege
that the factual background pertaining to their current situation is
the following:
3.1 The
First Applicant is a shareholder of RCR Industrial Flooring S.a.r.I.
Luxembourg
("RCR Luxembourg")
who
is in turn the holding company of PC Floors SA (Pty) Ltd
("PC
Floors").
3.2 The
First Applicant is a senior executive of RCR Luxembourg and is
currently the managing director of PC Floors.
3.3
During 2013 PC Floors and its South African sister company, RCR
Industrial Flooring and T Africa (Pty) Ltd
("RCR
Africa" ),
also a subsidiary of RCR
Luxembourg, were running at a deficit of some R6 million.
3.4
Since the First Applicant's involvement in the South African
companies, RCR Luxembourg has invested some R31
million in PC Floors
SA and some R3 million in RCR Africa. The South African companies
have been turned around and currently have
a turnover of some R200
million and a profit of some R20 million.
3.5 PC
Floors employs some 45 permanent employees and some 75
sub-contractors on a semi-permanent basis. Its BEE
level has also
increased to BEE Level 3 by the end of 2016 and to all intents and
purposes the company is doing financially well.
3.6 For
purposes of the above, the First Applicant has also extended the
footprint of the South African companies
or that of its holding
company into sub-Saharan Africa and regularly travels to Africa. He
makes the following statement in paragraph
4.13 of his affidavit:
"In taking the
business of PC Floors forward we are in the final stages of
negotiating business contracts in sub-Saharan Africa.
I intend to
extend these even more. The possibilities and opportunities are
endless. My future strategy for RCR Africa and PC Floors
aims to
increase the profits to R200 million by 2021."
3.7 As
will be more fully set out hereunder, an intra-company transfer work
permit is generally a short-term affair.
The Respondents' Acting
Chief Director: Permits sets out the position as follows:
"Occasionally,
multinational companies may decide to transfer an existing employee
in
a
key position from
a
foreign branch to
a
branch, subsidiary or an affiliate of that
company in South Africa.
These employees must
apply for intra-company transfer work permits. In such cases no proof
of steps taken to obtain the services
of
a
South African citizen or permanent residents
will be required. However, it is required that the Applicant must
have been employed
in the company abroad for at least 6 months prior
to his or her transfer to the South African operations and the South
African
branch, subsidiary or affiliate company must provide
a
skills transfer plan as proof that the
transfer of skills to a
South African
citizen or permanent residence will take place.
Section 19(1)
of the
Immigration Act provides
that intra company transfer work visas
are issued for
a
maximum
period of 4 years and are not renewable or extendable. Should the
continued services of the Applicant for some or other
reason be
required by the South African operations at the end of the 4 year
term an application for
a
new
intra-company transfer work visa must be applied for from the
Applicant's country of origin or of permanent residence.”
(The 4 year period
referred to is in fact not set out in the section but in Regulation
18(10) of the Immigration Regulations dated
22 May 2014.)
3.8 In
respect of the issue of skills transfer, the First Applicant states:
"Being involved
in the process of restructuring and re establishing the company
over the past 4 years had not allowed
for an opportunity to identify
and train a second in command who can attend to the company's
business in the event of my prolonged
absence. We obviously have not
contemplated the possibility of the current predicament."
[4]
The Applicants' reasons for the present urgent application against
the abovementioned
factual backdrop, are the following:
4.1 The
Applicants entered the country during January 2013. No detail is
provided of this entry but it appears
that this had been in terms of
a first intra-company transfer work permit.
4.2 The
current intra-company transfer work permit annexed to the founding
papers, was issued on 5 February 2015
and expires on 31 March 2017.
The condition thereto was that the First Applicant continues
employment with PC Floors SA as a managing
director.
4.3 On
9 May 2016, i.e. during the currency of the present intra-company
transfer work permit, the First Applicant
applied for a general
working permit as envisaged in Section 19(2) of the Immigration Act,
No. 13 of 2002
("the
Immigration
Act&rdquo
;).
4.4 In
order for the First Applicant to obtain such a work permit he had to
comply with the requisites of Regulation
18(3) of the Immigration
Regulations in terms of which he was required to submit a certificate
from the Department of Labour confirming
that despite a diligent
search his employer was unable to find a suitable South African
citizen or permanent resident with the
required qualifications or
skills and experience equivalent to those of the First Applicant to
take up his position.
4.5 The
First Applicant applied to be exempted from this lastmentioned
requirement in terms of
Section 31(2)(c)
of the
Immigration Act.
4.6 On
17 August 2016 the application for the aforesaid exemption was
refused as no
"good cause
"
as required in terms of
Section 31(2)(c)
of the
Immigration Act could
be found. The First Applicant (through his employer) was advised as
follows by the deponent for the Respondent, being the aforementioned
Acting Chief Director: Permits:
"The holder of an
intra-company transfer work visa contemplated in
Section 19(5)
of the
Immigration Act 9 issued
prior to 26 May 2014 for a period of 2 years
who wish to continue with an international assignment for the
remainder of the 4 year
period may submit an application for a new
intra-company transfer work visa contemplated in
Section 19(5)
of the
Immigration Act
>. . .
Section 19(2)
of the
Immigration
as
amended
inter alia aims to promote economic growth through employment of
needed foreign labour which does not adversely impact on
existing
labour standards and rights and expectations of South African
workers. Holders of the international employment contracts
do not
infringe on the rights and expectations of South African workers
since they are not employed in
a
position
on the establishment of the local branch, subsidiary or affiliate and
their salaries and benefits are structured differently
from that of
South African workers.
In view of the
aforementioned and based on the fact that Mr Huijskens requires
a
work visa to continue with his international
assignment in South Africa until 31 March 2017 he is advised to apply
for
a
new
intra-company transfer visa to be issued for the remainder of this
international assignment through the South African Mission
in his
country of origin or of permanent residence."
4.7 The
Applicants decided not to follow the advice. Instead they appealed
the refusal of their exemption application
and they are awaiting the
outcome of this appeal.
4.8
Subsequently also, the Applicants have formed the intention of
remaining permanently in South Africa and,
according to them or as
they were advised, they intended to apply for permanent residence in
terms of
Section 27(c)
of the
Immigration Act.
4.9
They
however had difficulty in making an appointment with the
Respondent's agent, VFS Visa Processing SA (Pty) Ltd and upon
attending
such appointment, the agent refused to accept the
application. This was on 12 January 2017.
4.10 A month later
the Applicants launched their urgent application, initially enrolled
for 7 March 2017 (being yet a further
month later) when it was
removed from the roll due to the fact that the application was not
yet ripe for hearing. Consequently
the matter came before me on
Wednesday 15 March 2017 at which date it was, unsurprisingly, argued
by the Respondent that any urgency
in the matter was self-created.
[5]
LEGISLATIVE FRAMEWORK:
The relevant statutory
enactments are the following:
5.1 In
terms of
Section 10
of the
Immigration Act, a
foreigner who is not a
holder of a permanent residence permit may enter and sojourn in the
Republic of South Africa only if in
possession of a visa issued by
the Director-General of the Department of Home Affairs for a
prescribed period. Subject to the provisions
of the Act, upon
application in person and in the prescribed manner, a foreigner may
be issued with a visa for the purposes of
transit through the
Republic (as contemplated in Section 10B), visiting the Republic (as
contemplated in Section 11), study (as
contemplated in Section 13),
conducting activities in the Republic in terms of an international
agreement to which the Republic
is a party (as contemplated in
Section 14), establishing or investing in a business (as contemplated
in Section 15), working as
a crew member of a conveyance in the
Republic (as contemplated in Section 16), obtaining medical treatment
(as contemplated in
Section 17), staying with a relative (as
contemplated in Section 18), working (as contemplated in Section 19
or 21), retirement
(as contemplated in Section 20), being part of an
exchange program (as contemplated in Section 22) or applying for
asylum (as contemplated
in Section 23).
5.2 The
Applicants' current sojourn in the Republic is in terms of Sections
19(5) and (6) which provide as follows:
"(19) (5)
An intra-company transfer work permit may be issued by the
Director-General to
a
foreigner
who complies with the prescribed requirements.
(6)
The holder of an intra-company transfer work visa may conduct work
only for the employer
referred to in subsection (5) and in accordance
with the requirements set out in his or her visa."
5.3
Regulation 18(9) of the Immigration Regulations provides as follows
in this regard:
"(9)
In terms of Section 19(5) of the Act, the relevant employer
shall ensure that
-
(a)
a
foreigner is only employed in
a
specific position for which the visa has been
issued;
(b)
the foreign employee will at all times comply with
the provisions the Act and conditions of his or her visa and
undertakes to immediately
notify the Director General if the
employee refuses to comply with the provisions of the Act or
conditions of the visa; and
(c)
a
plan is developed for the
transfer of skills to
a
South
African citizen or permanent resident.
(10)
An intra-company transfer work visa shall be issued for
a
period not exceeding 4 years and is not
renewable."
5.4 A
general work visa, being the one applied for by the First Applicant
and in respect of which an appeal is
still pending was one provided
for in Section 19(2) which is a general work visa to be issued to a
foreigner not falling within
a category of critical skills or
qualifications. The requirement is respect of which the First
Applicant seeks a exemption is the
following:
"
Regulation
18(3)
:
An application for
a
general work visa shall be accompanied by
-
(a)
a
certificate from the Department of Labour
confirming that:
(i)
despite
a
diligent
search, the respective employer has been unable to find
a
suitable citizen or permanent resident with
qualifications or skills and experience equivalent to those of the
applicant;
(ii)
the applicant has qualifications or proven skills and experience in
line with the job offer;
(iii)
the salary and benefits of the applicant are not inferior to the
average salary and benefits of citizens
or permanent residents
occupying similar positions in the Republic; and
(iv)
the contract of employment stipulating the conditions of employment
and signed by both the employer and the
applicant is in line with the
labour standards in the Republic and is made conditional upon the
general work visa being approved."
5.5 The
basis upon which the Applicants intend applying for permanent
residency is the following:
"
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
-
(c)
intends to establish or has established
a
business in the Republic
as
contemplated in Section 15 and investing in it
or in an established business
as
contemplated
in Section 15 the prescribed financial contribution to be part of the
intended book value and to the members of such
foreigner's immediate
family provided that:
(i)
the Director-General may waive or adduce such financial or capital
contribution for businesses
prescribed to be in the national
interest or when
so
requested
by the Department of Trade and Industry; and
(ii)
the permanent residence permit shall lapse if the holder fails to
prove within
2
years
of the issuance of the permanent residence permit and 3 years
thereafter to the satisfaction of the Director-General that
the
prescribed financial contribution to be part of the intended book
value is still invested
as
contemplated
in this paragraph."
5.6
Section 15
of the
Immigration Act deals
with business visas and
provides that:
"(1)
. . .
A business visa
may be issued by the Director General to
a
foreigner intending to establish or invest in
or has established or invested in
a
business
in the Republic in which he or she may be employed and an appropriate
visa for the duration of the business visa to the
members of the
foreigner's immediate family . . ."
5.7 In
addition to the aforesaid the First Applicant relies on
Regulations
24(5)
,
24
(7) and
24
(9). They provide as follows:
"24(5)
An application for
a
permanent
residence permit contemplated in Section 27(c) of the Act shall be
accompanied by
a
certificate
issued by
a
chartered
accountant registered with the South African Institute of Chartered
Accountants or
a
professional
accountant registered with the South African Institute of
Professional Accountants to the effect that
-
(a)
at least an amount in cash
as
determined
from time to time by the Minister after consultation with the
Minister of Trade and Industry by notice in the Gazette
is available;
or
(b)
at least an amount in cash and capital contribution
as
determined by the Minister after consultation
with the Minister of Trade and Industry by notice in the Gazette is
available …
(7)
An application for
a
permanent
residence permit contemplated in Section 27(c) of the Act by an
applicant who has established
a
business
in the Republic shall, in addition to the requirements of sub
Regulation (4) be accompanied by -
(a)
proof that at least 60% citizens or permanent residents are
permanently employed in various positions
directly in the operations
of the business;
(b)
proof of registration with the South African Revenue Service; and
(c)
proof of registration with the relevant professional body, council or
board recognised by SAQA in terms
of Section 13(1)(i) of the National
Qualifications Framework Act where applicable . . .
(9)
A foreigner who invests or has invested in an existing business
shall, subject to this regulation, submit
certified proof of
investment in the business in respect of the preceding financial year
. . ."
[6]
The First Applicant referred to the investments made by the
Luxembourg holding company
into its South African subsidiary. No
individual investment or cash or capital contribution was mentioned
nor contemplated by him
and no new business was to be established. It
appears from the affidavit that the First Applicant merely seeks to
intend running
the subsidiary of the foreign company, ostensibly for
an indefinite period of time. Whether this in itself qualifies for
residence
in terms of Section 27(c) or not is not now for me to
decide. Further, the First Applicant has also not indicated what
possible
measure of success or prospective success there might be in
his appeal against the refusal of the exemption of the Regulation
18(3)
requirements of his previous application for a general work
permit. He is also scant on information regarding the compliance with
Regulation 18(9)(c) by his own employer of which he is the Managing
Director. Be all that as it may, the issue is now whether the
Applicants should be granted the indulgence of remaining in the
Republic beyond the term of validity of the current intra-company
transfer work permit and to do so whilst applying for permanent
residence from within the Republic. On behalf of the Respondent
it
was strenuously argued that there is no reason to deviate from the
express provisions of the Act and to create exceptions or
precedents.
As matters currently stand, there is no right in law for the
Applicants to remain in the country once their current
permit expires
and there has been no formal application to the Director-General in
terms of Section 31(2)(c) to waive the prescribed
requirements or
forms by way of which the Applicants intended to submit their
application for permanent residency.
[7]
Upon a proper reading and consideration of the affidavits filed of
record, it appears
that the Applicants are the authors of their own
dilemma:
7.1
They have not made any timeous application for a new intra
company transfer work permit, despite having
been advised to do so as
long ago as 17 August 2016.
7.2
They have unilaterally decided to pin their hopes on their general
work visa application and on the appeal
against the refusal of the
exemption of the Regulation 18(3) requirements.
7.3
They had not in the fashion mentioned above complied with the
transfer of skills or planning of a successor
in the First
Applicant's position.
7.4
They furnished no cogent reasons why having waited only until the
12
th
of January to
attempt to apply for permanent residency.
7.5
They furnished absolutely no reasons why they have not, with the use
of their multiple entry existing intra-company
transfer work permit
(with which the First Applicant had already previously left South
Africa for other countries in Africa and
returned) left South Africa
to submit their applications (whatever they may be) in terms of the
regulations at the applicable foreign
missions.
[8]
On the other hand, there is also no explanation by the Department why
the appeal process
in respect of the First Applicant's work visa
application had not yet been finalised. At least the Applicants,
whilst legally in
the country, are entitled to rely on this
outstanding pending procedure. Had the appeal been timeously
completed prior to the termination
or impending termination of the
First Applicant's intra-company transfer work permit, he would have
been able to properly arrange
for the continuation of the foreign
company's subsidiary's business so as to not prejudice the South
African citizens employed
thereat. I have also considered the
personal circumstances of the Applicant and his family. Taking into
account all these considerations
the court is amenable to allow the
Applicant and his family to remain in South until the Department has
finalised its own internal
processes.
[9]
ORDER:
In the premises I grant
an order in the following terms:
1.
Pending the finalisation of the appeal against the refusal of the
waiver or exemption of the requirements
of Regulation 18(3)(a) in
respect of the First Applicant's general work visa as contemplated in
Section 19(2)
of the
Immigration Act, No. 13 of 2002
, the Respondent
is interdicted from declaring the Applicants and their minor
children, Zina Marie Winter and Stella Fien Winter
to be undesirable
persons in terms of
Section 30
of the
Immigration Act and/or
to
prosecute and/or to deport and/or to take any further steps against
the Applicants and the minor children premised on the fact
that the
First Applicant's intra-company transfer work permit has lapsed or
will lapse on 31 March 2017;
2.
Each party is to pay his or her own costs.
___________________________
N DAVIS
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
Judgment
delivered:
Counsel
for Applicants:
Attorneys
for Applicants:
Counsel
for Respondent:
Attorneys
for Respondent: