2
ORDER
1. The review application succeeds.
2. The decision by the first respondent to refuse to uplift the applicant’s status as a
prohibited person is reviewed and set aside.
3. The matter is remitted to the first respondent to consider the appeal afresh.
4. Within 30 days of service of this Court order, the first respondent must provide
the applicant with an outcome of his appeal, along with the reasons containing
all the factors he considered.
5. The first and second respondents are ordered to pay the costs of this review
including those of counsel, with the one paying the other to be absolved, on scale
A.
JUDGEMENT
MLAMBO, JP
Introduction
[1] In this application, the applicant (“Mr Lu ”) seeks to review and set aside the first
respondent ’s decision (“Minister ”), in upholding a determination made by the second
respondent (“Director -General ” or “DG”) declaring Mr Lu a prohibited person in terms
of the Immigration Act .1
Background
[2] It appears common cause, save what I say below, that o n 31 January 1998, Mr
Lu, a Chinese national , entered South Africa on a visitor ’s visa . He was subsequently
granted an extension to stay in the country, and t he following year in 1999, he applied
1 13 of 2002 (“the Act”).
3
for a permanent residence permit . He says he was assisted by an immigration agent,
known to him as Ms Lai. His application was successful, and his permanent residence
permit was granted on 29 November 2000.
[3] He subsequently used this to apply for a South African I D card in 2001 . In 200 4,
he met Ms Longw ei Zhang, also a Chinese national, who m he married on 31 March
2005. Ms Zhang was granted several visas which were periodically extended based
on her marriage to Mr Lu. The couple had their first child on 8 June 2006 , who was
born in South Africa. On 30 De cember 2009, they adopted their second child , a
Chinese national born on 29 November 1994 . As a result, their second child was
granted several relative ’s visas . During 2010, Ms Zhang applied for a permanent
residence permit based on her marriage to Mr Lu . However h er application was, on 1
February 2012, rejected on the basis that Mr Lu ’s permanent residence permit was
obtained fraudulently .
[4] During this time, Mr Lu says he founded a non-profit organisation , Home of
Grace and sometime in 2017, he applied for proof of residence from the Department
of Home Affairs (“the Department ”). He was then informed that his permanent
residence permit was deemed fraudulent and as a result he was listed as a prohibited
person under section 29(1)(f) of the Act.2 On 11 Januar y of 2018, he made an
application to the Director -General for the upliftment of his status as a prohibited
person in terms of section 29(2) of the Act.3 This application was rejected on 16 August
2018 (“the first rejection ”). As reasons for the rejection, the Director -General stated
that:
4.1. The permanent residence permit was fraudulently obtained;
4.2. That Mr Lu did not surrender those fraudulent documents during the
amnesty period of 2010;
4.3. That he did not present himself personally to the Department; that his
South African ID document was erroneously issued; and
2 Sections 29(1)(f) provide s that: “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: anyone
found in possession of a fraudulent visa, passport, permanent residence permit or identification
document.”
3 “The DirectorGeneral may, for good cause, declare a person referred to in subsection (1) not to be
a proh ibited person.”
4
4.4. That this invalidated his wife and daughter ’s statuses .
[5] On 3 September 201 8, Mr Lu appealed this decision arguing that :
5.1. He was bona fide in his application for permanent residence;
5.2. He was assisted by an immigration agent Ms Lai, whom he paid around
R40 000;
5.3. He was not aware that the permanent residence permit was issued
fraudulently, which is why he did not surrender it;
5.4. He only became aware of the fraud allegations when his wife applied for
a permanent residen ce which was rejected;
5.5. The amnesty period in 2010 was only applicable to Zimbabwean
nationals ;
5.6. That he has been a law abiding resident in South Africa for over 19 years
at the time of his appeal ; and
5.7. That his family ’s status was entirely dependent o n the upliftment of his
prohibited person status , which if not lifted would leave his youngest
daughter, a South African citizen, stateless.
[6] On 4 January 2021, the Director -General , again rejected the appeal (“the
second rejection ”), citing the same reaso ns. On 18 January 2021 , Mr Lu appealed to
the Minister under section 8(6) of the Act.4 On 18 October 2022, the Minister rejected
the appeal, citing similar reasons provided by the Director -General , namely:
6.1. That his stay in the country was based on deception and fraud;
6.2. That the Department has no record of him being issued with permanent
residence status ;
6.3. That no application for permanent residence was received;
6.4. That being issued with a South African ID does not exonerate him from
the provisions of se ction 48 of the Act;
4 “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.”
5
6.5. That while he claims that he was assisted by the immigration agent Ms
Lai, he has failed to provide proof that she actually exists; and
6.6. That his family life was noted but that did not mean his transgression
could be ignored.
[7] It is against this background , leading to the Ministerial rejection that Mr Lu now
approaches this Court for relief .
Grounds for review
[8] Mr Lu contends that the Minister ’s decision constitutes administrative action in
terms of the Promotion of Administrative Jus tice Act5 (PAJA), and section 33 of the
Constitution. Alternatively, he argues that if PAJA does not apply, then he seeks to
review the Minister ’s decision under the principle of legality. He raises three main
grounds. First , that the Minister failed to ta ke into account relevant considerations .
Second , that the respondents have not provided any evidence of fraud regarding his
perma nent residence permit and thirdly, that the Minister was not the functionary who
took the decision.
[9] On hi s first ground, he argues that he is an innocent party who was defrauded
by the immigration agent, Ms Lai . He argues that he cannot remember the specific
details regarding Ms Lai assisting him, only that he paid her R40,000 and that she
went back to Taiwan during 2007. Furth er, he argues that the Minister did not consider
his long residence in South Africa as a law-abiding citizen for over two decades, his
marriage of similar length, his family ’s dependence on his status , particularly his
youngest daughter who will become sta teless and his work through his non -profit
organisation since 2012. He argues that in terms of section 6(2)(e)(iii) of PAJA,6 the
Minister ’s decision is reviewable for failing to take these factors into account.
[10] On his second ground he argues that the dec ision taken by the respondents
was based on speculation and is arbitrary as the Department ’s records do not contain
5 3 of 2000 .
6 Section 6(2)(e)(iii) of PAJA provides that: “A court or tribunal has the power to judicially review an
administrative action if the action was taken because irrelevant considerations were taken into
account or relevant considerations were not considered. ”
6
any evidence of fraud , show ing that his permanent residence permit was obtained
unlawfully. This is as the Department did not conduct an ade quate investigation into
how his permit was issued, and that the onus is on them to prove fraud. More so , that
he has not even been formally charged with fraud. As a result, it is reviewable under
sections 6(2)(e)(iii), 6(2)(e)(vi), 6(2)(f)(ii), 6(2)(h) and 6(2)(i) of the PAJA .
[11] On his third ground he argues that the decision was not taken by the Minister
because the signature on his appeal rejection does not match the Minister ’s signature
on other official documents such as the Department ’s annual report. He says that the
need to compare signatures arose after the record failed to provide any paper trail for
the Minister ’s decision , suggesting that he did not even receive the section 8(6)
appeal . He calls on the Minister to show when he received the appeal, how he
considered it and what considerations he took into account. A failure to do this, it is
submitted, would make the decision reviewable in terms of sections 6(2)(a)(i) or (ii),
6(2)(b) and 6(2)(i) of the PAJA .
[12] Despite the fact that this application is targeted at the Minister ’s decision, the
Minister did not submit an answering nor a confirmatory affidavit. It is the DG who filed
an answering affidavit, which amounts to a general denial . The answ ering affidavit
does not directly address whether the Minister took all factors into account when Mr
Lu’s appeal was rejected. The main stance in that affidavit is that the decision to reject
the appeal was a lawful one. The main argument being that the Mr Lu’s permit was
fraudulent . This is the justification advanced for not considering the other arguments
provided by Mr Lu.
[13] The DG highlights that section 29(2) of the Act gives the Minister a discretion, and
therefore it is up to the Minister to determine what factors are most important. He then
appears to argue that by noting Mr Lu's family life, they have discharged their duty.
[14] The answering affidavit does not addre ss Mr Lu’s argument that no investigation
into the alleged fraud was carried out or that he was not charged with fraud . Also not
addressed is Mr Lu’s argument that he has lived in this country for over two decades,
as well as his marriage and his non -profit work, and that these are relevant factors that
the Minister failed to take into account .
7
[15] Similarly, the respondents do not engage at all with Mr Lu ’s claims regarding the
Minister ’s signature and his allegation that the decision was not taken by the correct
functionary.
The avenue for reviewing the Minister’s decision
[16] Section 33 (1) of the Constitution gives everyone the right to “administrative action
that is lawful, reasonable and procedurally fair ”. Section 33(3) states in part that
“[n]ational legislation must be enacted to give effect to these rights ”. The relevant
national legislation is the PAJA . In Minister of Defence and Military Veterans v Motau
and Others ,7 the Constitutional Court explained the factors to consider when
determining whether conduct amounts to administrative or executive action. It said:
“The concept of “administrative action”, as defined in section 1(i) of PAJA, is
the threshold for engaging in administrative -law review. The rather unwieldy
definition can be distill ed 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 prov ision; (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. ” (Footnote omitted.)
[17] This is not the first time a decision by the respondents to declare a person
prohibited in terms of section 29 of the Act is before our Courts. In those matters, it
was found that such a decision falls within the definition of administrative action and
is reviewable under the PAJA. In Klemenc v Head of Immigration Inspectorate and
Others ,8 this Court said:
“The most important question before me is whether the prohibition can be
regarded as administrative action.
There must be a decision to declare a person prohibited.
That decision is taken by an organ of state, exercising a publ ic power
performing a public function in terms of any legislation…
In this instance the decision is taken in terms of Section 29(1)(f) and 29(2) of
the Immigration Act .
7 [2014] ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5) SA 69 (CC).
8 [2024] ZAGPPHC 381.
8
The Respondents were exercising a public power in terms of legislation.
There is no other conclusion that I can draw that the actions of the
Respondents are administrative action and not ex lege .”9
[12] In Mukonga v Minister of Home Affairs and Another ,10 a decision to declare a
person prohibited and subsequent refusal to uplift it was taken on review and this Court
said:
“As correctly pointed out by [the applicant] , the decision of the Minister, being
an administrative action, is subject to be reviewed in terms of the provisions
of the Promotion of Administrative Justice Act 3 of 2000 [PAJA ]. The Minister's
powers to dismiss Mr Mukonga's appeal are found in the Act. It is the
implementation of national legislation ”11
[13] Furthermore, the respondents have conceded in previous cases that the
appropriate avenue for review in matters concerning cancellation or rejection of
permanent resident permits is the PAJA. In Ling and Another v The Director -General
of the Department of H ome Affairs and Another ,12 there was a challenge to the
rejection of the applicant ’s permanent residence applications , where it was stated that
“[t]he respondents now also agree that the impugned decision is susceptible to judicial
review in terms of s 6 of PAJA ”.
[14] I therefore conclude on this aspect that the decision was administrative in
nature because it was merely the Minister “carrying out the daily functions of the state
which necessarily involves the application of policy … with direct and immediate
consequences for individuals ”.13 Moreover, the Minister was exercising a public power
in that he was fulfilling his appeal duties , which itself was done in terms of the
Immigration Act, and it adversely affected Mr Lu ’s rights in that he was declared a
prohibited person and liable for deportation . This had a direct, external legal effect on
Mr Lu due to the situation his family now faces. Furthermore it does not fall under any
9 Id at paras 14 -19.
10 [2022] ZAGPPHC 105.
11 Id at para 30.
12 [2022] ZAWCHC 177.
13 Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA
43; [2005] 3 All SA 33 (SCA); 2005 (6) SA 313 (SCA); 2005 (10) BCLR 931 (SCA) at para 24.
9
of the exclusion s. Before turning to the grounds of review under PAJA, I first set out
the relevant sections of the Immigration Act.
The Immigration Act
[15] Sections 8(3) and (4) provide that:
“(3) Any decision in terms of this Act, other than a decision contemplated in
subsection (1), that materially and adversely affects the right s 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
DirectorGeneral for the review or appeal of that decision. ”
[16] Sections 31(2) in relevant part provides that:
“31. Exemptions. —
…
(2) Upon application, the Minister may under terms and conditions
determined by him or her —
…
(b) grant a foreigner or a category of foreigners the rights of permanent
residence for a specified or unspecified period when special
circumstances exist which would justify such a decision: Provided
that the Minister may —
(i) exclude one or more identified foreigners from such categories;
and
(ii) for good cause, withdraw such rights from a foreigner or a
category of foreigners;
(c) for good cause, waive any prescribed requirement or form. ”
[17] Section 48 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 R epublic 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. ”
10
[18] The relevant regulations in terms of the Act are regulations 26 (6) and ( 7), which
provide that:
“26. Prohibited persons. —
…
(6) The Director -General shall, in declaring a person not to be a prohibited
person, consider the following factors —
(a) the reasons for the prohibition;
(b) the seriousness of the offence committed; and
(c) representations 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. ”
[19] As stated, f ollowing Mr Lu ’s wife ’s application for permanent residence, he was
informed by the DG that in terms of section 29(1)(f) of the Act he was a prohibited
person as a result of being in possession of a fraudulent visa. He argues that the
grounds provided by respondents in rejecting his application under section 29(2) are
reviewable under PAJA.
[20] Mr Lu submits that the decision is reviewable under a number of the instances
found in section 6(2) but the parties are agreed that the issue in this c ase effectively
implicate s sections 6(2)(e)(iii) ,14 6(2)(e)(vi) ,15 6(2)(f)(ii)(cc) ,16 and 6(2)(h) .17
[21] Mr Lu submits that in reaching his decision, the Minister gave too much weight
to an irrelevant consideration, being the alleged fraud, while ignori ng relevant
14 “A court or tribunal has the power to judicially review an administrative action if the action was taken
because irrelevant considerations were taken into account or relevant considerations were not
considered.”
15 “A court or tribunal has the power to judicially review an administrative action if the action was taken
arbitrarily or capriciously.”
16 “A court or tribunal has the power to judicially review an administrative action if the action itself is
not rationally connected to the information before the administrator.”
17 A court or tribunal has the power to judicially review an administrative action if the exercise of the
power or the performance of the function authorised by the empowering provision, in pursuance of
which the administrative action was purportedly taken, is so unreasonable that no reasonable person
could have so exercised the power or performed the function.”
11
considerations such as the representations made to show good cause . These factors
are his innocence and lack of knowledge that his permit was fraudulent and the impact
on his family life, that he has been a law-abiding citizen for more than two decades on
the understanding that he held a valid permanent residence permit. He argues
specifically that the decision to declare him a prohibited person render s his minor
daughter stateless. Placing reliance on the Constitutiona l Court ’s decision in New
Clicks ,18 Mr Lu argues that the effect of the Minister ’s decision was merely to pay “lip
service ” to his representations. He places reliance on the following paragraphs from
the Judgment :
“The Pricing Committee and the Minister m ust apply their minds to all relevant
and material information placed before them. They must properly evaluate
such information and attach such weight to it as the degree of its importance
requires . They should not pay lip service to this obligation ”. (App licant’s
emphasis.)
And:
“The Pricing Committee and the Minister must therefore do more than pay lip
service to the viability of pharmacies . They must address the need for
pharmacies to exist in a meaningful way when fixing the appropriate fee and
be ab le to demonstrate that they have done so .” (Applicant’s emphasis.)
[22] On Mr Lu ’s first ground, the respondents argue that the Immigration Act should
be considered within its full context, that while allowing for and regulating the entrance
of foreign nationa ls into South Africa, it also serves to protect the country ’s sovereignty
and borders. It is for this reason that certain foreign nationals may be deemed to be
prohibited and deported. Furthermore, merely being issued with a South African ID
does not exone rate a person from the provision of section 48 of the Act. This section
states that not being aware that one is an illegal foreigner does not prevent them being
treated as such under the Act.
[28] In response to Mr Lu’s second ground, the respondents sub mit that the
Department has no record of Mr Lu entering the country in 1998 and obtaining a
18 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 25; 2006
(8) BCLR 872 (CC).
12
visitor’s visa valid for a period of three months. Nor does the Department have a record
of his application for a permanent resident visa or his “approved” permit a s a
permanent resident. The respondents do not address any of the issues Mr Lu raised
in his supplementary affidavit, in particular, the onus on proving fraud, the lack of
adequate investigation into the allegations of fraud and that Mr Lu has not been
charged with fraud.
[23] The respondents argue that they have given adequate consideration to his
submissions and that he had three different opportunities19 to state his case. They say
that in all three he failed to produce substantive evidence to back up his claims about
the existence of Ms Lai , nor did he provide any new information. Therefore, having
exhausted all internal remedies, his status as a prohibi ted person must stand.
[24] Indeed, by merely “noting ” Mr Lu ’s family situation, the Minister merely paid lip
service to it and failed to demonstrate in any meaningful manner what they considered
about it. This is especially in light of the constitutional injunction s that “[a] child ’s best
interests are of paramount importance in every matter concerning the child. ”20 To this,
the respondents rely on the Constitutional Court ’s decision in Nandutu and Others v
Minister of Home Affairs and Others ,21 where it was confirmed that the paramountcy
of the child ’s best interests do not override all other rights, as the Constitution allows
all rights to be limited in terms of section 36. It should however be noted that the
respondents have not made out any case as to why it is “reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom ” to
limit this right in this case , nor have they undertaken a section 36 analysis.
[25] In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and
Others ,22 the Constitutional Court had to decide whether to confirm a declaration of
constitutional invalidity made by the high court which found that section 22(12) and
(13) of the Refugee ’s Act were unconstitutional . These sections provided that an
19 The application to the DG to remove his status as a prohibited person (11 January 2018); the appeal
to the D G in terms of section 8(4) which was rejected; and the appeal to the Minister in terms of section
8(6) which was rejected and is the subject of this review.
20 Section 28(2) of the Constitution.
21 [2019] ZACC 24; 2019 (8) BCLR 938 (CC) ; 2019 (5) SA 325 (CC ).
22 [2023] ZACC 45; 2024 (4) BCLR 592 (CC); 2024 (3) SA 330 (CC).
13
application for asylum that was deemed abandoned if an asylum seeker who was
granted an asylum seeker visa did not present themselves for its renewal one month
after it expired. In confirming the declaration of unconstitutionality, the Constitutional
Court considered the rights of children, whose status is tied to that of their parents. It
said:
“Aside from t his, the impugned subsections also unjustifiably limit the rights of
children, as submitted by the amicus. This Court has emphasised that “[t]he
recognition of the innate vulnerability of children is rooted in our Constitution,
and protecting children form s an integral part of ensuring the paramountcy of
their best interests.” It cannot be in the best interests of children to deem their
applications as having been abandoned, with all its consequences, due to
bureaucratic circumstances beyond their control.
Children’s applications for asylum are generally tied to those of their parents.
The deemed abandonment of parents’ asylum applications has had drastic
consequences on their children. CoRMSA adduced evidence that the children
of an asylum seeker whose app lication was deemed to be abandoned could
not attend school for the entire 2020 academic year because they had no
visas. In another case, an asylum seeker’s son could not register for matric.
Like their parents, without visas, children also face the risk o f arrest, detention
and deportation. As this Court said in Centre for Child Law , it is unjust to
penalise children for matters over which they have no power or influence.”23
(Footnotes omitted.)
[26] Although that decision dealt with the Refugees Act, the situa tion facing children
is analogous to th e situation in casu . While I accept that the respondents have stated
that Mr Lu ’s minor child may re -apply for her birth certificate based on her birth in
South Africa, it does not change the fact that currently, her status is based on her
father ’s permanent residence. As a minor, she is entirely dependent on her parents.
Should her parents be deported to China, she too would inevitably have to leave with
her parents . Citizenship in China is regulated by the Nationalit y Law of the People's
Republic of China .24 Article 3 of this law provides that:
“The People's Republic of China does not recognize dual nationality for any
Chinese national. ”
[27] Article 5 provides that:
23 Id at paras 41-2.
24 Accessed from http://www.npc.gov.cn/zgrdw/englishnpc/Law/2007 -12/13/content_1384056.htm
14
“Any person born abroad whose parents are both Chine se nationals or one of
whose parents is a Chinese national shall have Chinese nationality. But a
person whose parents are both Chinese nationals and have both settled
abroad, or one of whose parents is a Chinese national and has settled abroad,
and who has acquired foreign nationality at birth shall not have Chinese
nationality .” (Emphasis added.)
[28] This makes it clear that Mr Lu ’s minor child does not qualify for Chinese
citizenship , and if she were to leave with her parents for China, she may face the same
issues faced by minor children of asylum seekers in this country that were highlighted
by the Constitutional Court. She would effectively be a foreigner in China , possibly
limiting her access to essential services like education and empl oyment. It must also
be point ed out that this Court is the upper guardian of all minor children and therefore
must conclude on this point that the Minister failed to consider the implications of his
decision on Mr Lu ’s minor child. Without his reasons on this aspect, beyond merely
“noting it ”, I cannot make a determination as to whether such as decision was rational.
Of course, this does not mean there is no circumstance under which Mr Lu ’s status as
a prohibited person can be upheld because of the citizens hip of his minor child , it
merely means that there is no evidence before me to the effect that the Minister
considered this factor when making his decision. Under PAJA, once an affected
person has established a reviewable irregularity, that is the end of the matter . In the
words of the Constitutional Court:
“[T]here 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). ”25
[29] Mr Lu also relies on two further decisions, A.K and Others v Minister of Home
Affairs and Another26 and Najjemba v Minister of Home Affairs and Another .27 In AK
the applicant was a Russian citizen and illegal foreigner in this country found with a
fraudulent work visa. She had three children who were born in this country to a South
African father. Upon discovering the fraudulent visa she was declared a prohibited
25 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the
South African Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1)
BCLR 1 (CC) at para 25.
26 [2023] ZAWCHC 52; [2023] 2 All SA 349 (WCC); 2023 (3) SA 538 (WCC) (“AK”).
27 [2022] ZAWCHC 199 (“ Najjemba ”).
15
person in terms of section 29(1)(f) and her appeal to reverse her status was similarly
to Mr Lu, refuse d. In that matter too, the applicant claimed that she was a victim of
fraud and had no reason to believe that her visa was fraudulent .
[30] The Court found t he decision reviewable because, amongst other reasons, the
DG was fixated on the fraud without conducting a proper investigation into the
applicant ’s plea of innocence. This resulted in failing to consider relevant factors while
not considering the best in terests of the minor children.28 The Court noted that
regulations 26(6) and (7) provide guidance on the factors to consider, stating:
“What this means is that the DG must have regard to all the facts placed before
him by way of representations when exerci sing his discretion under section
29(2) of the Immigration Act. Whether the first applicant knowingly falsified
her visa (on the one hand) or is either innocent or merely neglectful (on the
other hand) is a material factor. Nowhere in the reasons provided by the DG
is there any indication that the DG, or his officials, pursued or attempted to
investigate the first applicant’s explanation that Aksu had perpetrated the
fraud and that the officials of the Department may have been involved. Nor is
there any ind ication that they attempted to ascertain the circumstances
surrounding the provisional withdrawal of the charges or the likelihood that
these charges would be reinstated. 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 ”.29
[31] In Najjemba , the applicant was a Ugandan national who had paid an
immigration specialist to assist her in applying for a work visa. Like AK and Mr Lu, it
later turned out that the visa was fraudulent and she was declared a prohibited person.
The Court reviewed and set aside the decision on a similar basis in that there was no
evidence of the Minister considering all the relevant factors. The Court said:
“To the extent that the Minister intended to include in his reasoning those
reasons contained in the letter from the DG as his reasons for rejecting the
applicant’s prohibition, in my view, the reasons of the DG do not contain
anything more s ignificant at all. The only additional reason seems to be that
the DG concluded that the applicant claimed that she had employed the
services of an immigration agent to obtain a work visa with no substantial
evidence. The applicant provided all the evidenc e at her disposal, including
various communications with Masondo. It is difficult to ascertain what more
the applicant should have done.
28 Id at para 49.
29 It at para 30.
16
The justifications provided and contained in both letters from the DG and the
Minister respectively, which in my view were inadequate as required by law,
focuses only on the alleged transgression of section 29(1)(f) of the Act and
ignore the other pertinent reasons put forth by the applicant as to why her
prohibition should be lifted. I agree with counsel for the applican t that section
29(2) is broader than a mere internal appeal of a previous (the DG’s or the
Department’s) decision. It empowers the Minister, to lift a declaration of
prohibition “for good cause”. Section 29(2) therefore requires the
consideration of a diff erent question to that of section 29(1)(f) .”30
[32] The Court went on to state that:
“The Minister was not called to consider whether the applicant obtained a
fraudulent visa, but rather whether good cause exists why her prohibition
should be lifted. For this consideration, I cannot see how the Minister could
have applied his mind properly to the question before him without the missing
documents as listed above. The applicant relies, amongst other, on the
contents of the missing documents in her case for the l iftment of her
prohibition. For this reason alone, the Minister’s decision should be set aside .”
[33] In the matter in casu , the parallels are indeed striking with the decisions in AK
and Najjemba . This as the Minister did not show what considerations he took into
account, and his reasons merely mirror those of the DG that fraud occurred, and that
is the end of the matter. The requirement to show good cause is self -standing and the
Minister must go beyond the allegation of fraud by independently considering whe ther
the reasons provided by a person seeking an upliftment of their status as prohibited,
show enough good cause for that to happen.
[34] The conclusion to be drawn from all this is that the review should be granted
and the Minister ’s decision set aside. To counter this conclusion, the respondents take
the view that the applicant is approaching this court with “unclean hands ” and therefore
should not be allowed to approach this Court in the first place. The unclean hands
doctrine is a subset of the abuse o f court principle and it effectively means that the
Courts cannot be used by persons who seek to advance a dishonest or mala fide
cause. The respondents accus e the applicant of fraud, and in the context of
immigration, a serious problem in this country that cannot be tolerated by our Courts.
In Lazarus Estates Ltd v Beasley ,31 Lord Denning said of fraud:
30 Najjemba above n 27 at paras 39 -40.
31 [1956] 1 All ER 341.
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“Fraud unravels everything. The court is careful not to find fraud unless it is
distinctly pleaded and proved; but once it is proved it vitiates judgments,
contracts and all transactions whatsoever .”32
[35] It cannot be said that the Department has proven fraud. As things stand, all they
have said is that the y have no records of the applic ant entering the country in 1998,
applying for and being granted a permanent resident visa. Indeed, this may very well
be a result of fraud committed by Ms Lai alone, Ms Lai with the applicant or poor record
keeping by the Department. In the absence of an investigation , this Court cannot
accept the mere say -so of the respondents. To bar a litigant on the basis of the unclean
hands doctrine places an onus on the party alleging to prove the underlying reason for
the unclean hands. The respondents have hardly made out a case why this Court
should limit the applicant ’s right of access to Court. This is because they cannot say
that because the applicant committed fraud, he has failed to show good cause why his
prohibited status must not be uplifted because he com mitted fraud. As stated in
Najjemba , the Minister must consider factors other than the underlying reason for
declaring a person prohibited in determining whether good cause has been shown.
[36] From all the above, the doctrine of unclean hands does not apply i n this
instance and the Minister ’s decision stands to be reviewed and set aside.
Just and equitable r elief
[37] The applicant has sought that the matter be remitted back to the Minister for
him to supplement or provide additional reasons for his decision. I am not convinced
that this will be appropriate in the circumstances of this case. I agree that the
appropriate relief is for the matter to be remitted, but I am of the view that the Minister
must consider the appeal afresh , including the following aspects :
37.1. The reliability of the Department ’s record keeping system and methods,
in particular, whether the re is a chance that an application could have
been made but not show up in their system;
32 Id at 345.
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37.2. Whether, according to their records, any other person was assisted by
Ms Lai, and her legitimacy as an immigration agent ;
37.3. The prevalence of “ghost agents ” and whether this is a tactic used by
unscrupulous persons when they are caught with fake documents ;
37.4. Whether any investigation has been made into Mr Lu ’s plea of being an
innocent victim and;
37.5. What will happen to Mr Lu ’s minor child , should his prohibited person
status be upheld ; and
37.6. The relevance of Mr Lu being a law-abiding citizen who contributes to
his community through his non -profit organisation.
[38] I in no way intend to fetter the Ministers discretion as to what is and is not
relevant, however, I find it hard to see how he can come to a rational decision without
taking into consideration any of the above factors. He of course, is not limited to only
these factors and will be in a better position than this Court to decide what factors will
be relevant in reaching his decision.
Costs
[39] The applicant was successful and there is no reason that costs should not
follow the result.
[40] In the result the following order is made:
Order
1. The review application succeeds .
2. The decision by the first respondent to refuse to uplift the applicant’s status as a
prohibited person is reviewed and set aside .
3. The matter is remitted to the first respondent to consider the appeal afresh .
4. Within 30 days of service of this Court order, the first respondent must provide
the applicant with an outcome of his appeal , along with the reasons containing
all the factors he considered.
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5. The first and second respondents are ordered to pay the costs of this review
including those of counsel, with the one paying the other to be absolved, on scale
A.
___________ __
D MLAMBO
Judge President
Gauteng Division of the High Court
Date of hearing : 21 January 2025
Date of judgment : 26 February 2025
Appearances
For the Applicant : V Mabuza
instructed by MVB Attorneys
For the Respondent s: F Mzilikazi
instructed by Office of the State Attorney, Pretoria