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[2007] ZASCA 149
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Director-General: Department of Home Affairs and Another v Mavericks Revue CC (576/06) [2007] ZASCA 149; [2007] SCA 149 (RSA); [2008] 1 All SA 435 (SCA); 2008 (2) SA 418 (SCA) (28 November 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
:
576/06
In the matter between :
DIRECTOR
GENERAL : DEPARTMENT OF HOME
AFFAIRS
.......................
First Appellant
MINISTER OF HOME AFFAIRS
.......................
Second Appellant
and
MAVERICKS REVUE CC
.......................
Respondent
____________________________________________________________________________
Before: HOWIE P, NUGENT, PONNAN, MLAMBO JJA & HURT AJA
Heard: 15 NOVEMBER 2007
Delivered: 28 NOVEMBER 2007
Summary: Immigration Act and Regulations – corporate permit
– whether work permit for a corporate worker attracts the
fee
payable for a general work permit contemplated by s 19 –
discretion to require security for repatriation – whether
properly exercised.
Neutral citation: This judgment may be referred
to as
DG Department of Home
Affairs v Mavericks Revue CC
[2007]
SCA 149 (RSA)
_____________________________________________________________________________
J U D G M E N T
_____________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The skills shortage, so it seems, extends to exotic
dancing. The respondent wishes to bring 70 exotic dancers to this
country,
mainly from Russia and Ukraine, to work at its revue bar in
Cape Town. It has permission from the Department of Home Affairs to
do
so in the form of a ‘corporate permit’ issued to it
under the
Immigration Act 13 of 2002
. But the first secretary in the
consular section of the embassy in Moscow, Ms Loving, has declined to
issue work permits to the dancers
unless each pays a fee of R1 520
and provides a cash deposit of US $2 000 as security for
repatriation. The High Court at Cape
Town (Fourie J) set aside the
imposition of the two conditions and the appellants now appeal
against its order with the leave of
that court.
[2] The entry of foreigners to South Africa is regulated
by the
Immigration Act, the
Immigration Regulations,
1
and the Regulations on Fees.
2
That statutory regime, so far as it is material to the
present case, is rather confusing, and perhaps it is even defective.
[3] A foreigner who is not the holder of a permanent
residence permit is permitted to enter and sojourn in South Africa
only if he
or she is in possession of a valid ‘temporary
residence permit’ (ss 9(4) and 10(1) of the Act). A
‘temporary
residence permit’ is defined to mean ‘a
temporary residence permit contemplated in section 10’. Section
10(2) provides,
in turn, that upon application in the prescribed
manner and form, ‘one of the temporary residence permits
contemplated in sections
11 to 23 may be issued to a foreigner.’
[4] Sections 11 to 23 provide for the issue of various
kinds of permit: a visitor’s permit, a study permit, a work
permit, and
so on. Each of those permits, except one, purports to be
a residence permit as ordinarily understood. The exception is the
permit
provided for in s 21 – called a ‘corporate
permit’ – which is not a residence permit at all.
[5] A ‘corporate permit’ is applied for by a
‘corporate applicant’ (‘a juristic person that
conducts
business, not-for-gain, agricultural or commercial
activities within the Republic’
3
)
and permits the corporate applicant to ‘employ foreigners who
may conduct work for such a corporate applicant’ (s 21(1)).
What has given rise to the difficulty in this case is that it is not
clear how the foreigners concerned are to acquire the right
to enter
and sojourn in this country.
[6] Reg. 18(6) envisages that a ‘person
employed by the holder of a corporate permit’ will apply for a
‘work
permit’ and it lays down various requirements that
such an application must meet. Yet the Act does not create a category
of
work permit that is expressly apposite. Ms Loving and the
department take the view that the ‘work permit’ referred
to
in that regulation is a work permit envisaged by s 19 of the
Act. Because the schedule to the Regulations on Fees stipulates
a fee
of R1 520 for an application for a work permit that is issued
under s 19 Ms Loving has insisted on that fee being
paid.
[7] The court below held that the work permit envisaged
by reg. 18(6) is not a work permit contemplated by s 19 of
the Act
but is one that is
sui generis
(by which I understand the court to mean that it is not
one of the permits provided for in ss 11 to 23). Since no fee
for such
a permit is stipulated in the Regulations on Fees it held
that no fee is payable.
[8] There is some support for the department’s
view in the definition section of the Immigration Regulations. That
defines a
‘work permit’ to mean ‘the relevant
permit contemplated in s 19 of the Act.’ The trouble is
that none
of the work permits provided for in s 19 of the Act
are relevant to corporate workers. There are also other clear
indications
that the work permit envisaged by reg. 18(6) is not
such a permit.
[9] Section 19 provides for the issue of four kinds of
work permit – a ‘quota work permit’, a ‘general
work
permit’, an ‘exceptional skills work permit’
and an ‘intra-company transfer work permit’. I need deal
only with a ‘general work permit’ because it is accepted
by the appellant that the other three permits have no application
in
this case.
[10] A general work permit may be issued to a foreigner
only if, amongst other things, ‘the prospective employer
satisfies the
Director-General that despite diligent search he or she
has been unable to employ a person in the Republic with
qualifications or
skills and experience equivalent to those of the
applicant’ (s 19(2)). That is not a requirement for the
issue of a corporate
permit. It follows that a foreigner who is
permitted to be employed under a corporate permit will not
necessarily qualify for a general
work permit under s 19, which
is the first indication that reg. 18(6) refers to a work permit
of a different kind. The
second indication, as pointed out by the
court below, is that the criteria to be met when applying for a s 19
work permit (those
criteria are contained in reg. 16) are
different to those that must be met when applying for a work permit
under reg. 18(6)
from which it is apparent that the regulations
have different permits in mind. The third indication, also mentioned
by the court
below, is that s 21(5) distinguishes corporate
workers from workers who hold s 19 work permits, in so far as it
provides that
‘the holder of a corporate permit may also employ
foreigners in terms of s 19’. And finally, if it was
intended
that corporate workers would qualify for and be issued with
general work permits there would be no need for corporate permits to
be issued at all.
[11] I agree with the court below that the work permit
that is envisaged by reg. 18(6) could not have been intended to
be a work
permit issued under s 19 of the Act. I do not think we need
to decide whether it is a ‘
sui generis
work permit’ that is permitted implicitly by the
Act – it might also be that there is simply an inadvertent
lacuna in
the Act. It is sufficient for present purposes to say that
an application for a work permit envisaged by reg. 18(6) does
not
attract any fee stipulated in the Regulations on Fees and the
finding of the court below on that issue cannot be faulted.
[12] Ms Loving’s insistence upon payment of a
repatriation deposit in respect of each of the dancers has its
foundation in reg. 18(6)(b)(iii).
That subsection provides that
an application for a work permit to be issued to a person employed by
the holder of a corporate permit
must comply with various
requirements that include
‘at the discretion of the Director-General, proof of a valid
return air ticket, a deposit or a written undertaking by the employer
accepting responsibility for the costs related to the deportation of
the applicant and his or her dependant family members, should
it
become necessary…’
[13] That regulation needs to be seen in the context of
the corporate permits to which it relates. When the Director-General
is asked
to issue a corporate permit he or she is required by s 21(2)
to ‘determine the maximum number of employees to be employed
in
terms of a corporate permit’ after having considered, amongst
other things
‘the financial guarantees posted in the prescribed amount and
form by the corporate applicant to defray deportation and other
costs
should the corporate permit be withdrawn, or certain foreigners fail
to leave the Republic when no longer subject to the corporate
permit.’
[14] Although it is not expressly so stated I think it
is implicit that the posting of financial guarantees is a
pre-requisite for
the issuing of a corporate permit. Reg. 18(5)
provides that those financial guarantees may, at the discretion of
the Director-General,
take either of two forms: a ‘deposit in
respect of each corporate worker’, or a ‘written
undertaking [by the corporate
employer] in lieu of the deposit’.
In the present case the respondent furnished written
undertakings that I must assume were acceptable to the department.
[15] Ms Loving and the department understand
reg. 18(6)(b)(iii) to mean that an applicant for a work permit
may be required to
furnish an additional repatriation deposit or
written undertaking hence the insistence in this case upon deposits
of US $2 000. I
find it rather anomalous that a duplication of
security for repatriation may be required when a work permit is
applied for (duplicating
the security that was provided by the
employer when obtaining a corporate permit) and perhaps the
regulation is open to another interpretation.
But that is not a
matter that we need to decide. I have assumed for present purposes
that the regulation does allow for further security
to be demanded at
the discretion of the Director-General.
[16] It is common cause that the discretion to require
payment of a repatriation deposit was delegated to Ms Loving by the
Director-General.
It is alleged by the respondent that Ms Loving was
instructed by the department to ask for a repatriation deposit in all
cases of
this kind and that she simply executed that instruction and
exercised no discretion at all. That allegation was met with a bald
denial
by the Office Manager of the office of the Department of Home
Affairs at Cape Town (the deponent to the appellants’ answering
affidavit) without any supporting evidence of Ms Loving. I do not
think a bald denial by a stranger with no apparent knowledge of
the
facts can carry any weight. The court below found that by merely
executing an instruction Ms Loving failed to exercise any discretion
at all with the result that her decision was unlawful and in my view
that finding was correct.
[17] The court below set aside the imposition by Ms
Loving of each of the conditions and also declared that ‘the
applicants
for work permits to be employed by [the present
respondent]…are not required to pay the fee of R1 520
prescribed in respect
of a work permit issued in terms of section 19
of the [Act] or any fee at all’ but it gave no directions
relating to the fate
of the applications. It was submitted on behalf
of the appellants that if we dismiss the appeal we should remit the
matter to the
Director-General for reconsideration of all the
applications for work permits by foreign workers recruited by the
respondent from
abroad and give appropriate directions in that
regard. I see no reason to make such an order. The conditions having
been set aside
the applications will necessarily require
reconsideration in accordance with law and we need give no directions
as to what that entails.
[18] The appeal is dismissed with costs that are to
include the costs of two counsel where two counsel were employed.
____________________
R.W. NUGENT
JUDGE OF
APPEAL
CONCUR
:
HOWIE
P)
PONNAN
JA)
MLAMBO
JA)
HURT
AJA)
1
Published
under Government Notice R. 616 in Government Gazette 27725 of 27
June 2005.
2
Published
under Government Notice R. 615 in Government Gazette 27725 of 27
June 2005.
3
Definition
of ‘corporate applicant’ in s 1.