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De Saude Sadat Darbandi Immigration Attorneys Incorporated and Others v Acting Provincial Manager, Western Cape Department of Home Affairs and Others (17216/2023) [2025] ZAWCHC 83 (3 March 2025)

82 Reportability
Administrative Law
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Brief Summary

Administrative Law — Access to public services — Screening process by Department of Home Affairs — Applicants challenged the refusal of officials to accept applications for citizenship and registration of births, alleging it constituted unlawful gatekeeping — Court found that officials lacked authority to refuse applications based on perceived defects, as their role was limited to clerical screening — Conduct of officials declared ultra vires the Citizenship Act and the Births and Deaths Registration Act, and unlawful — Respondents ordered to accept applications and transfer them to the appropriate decision-making authority.

Comprehensive Summary

Case Note


The case is titled DE SAUDE SADAT DARBANDI et al. versus THE ACTING PROVINCIAL MANAGER, WESTERN CAPE DEPARTMENT OF HOME AFFAIRS, THE DISTRICT DIRECTOR, CAPE TOWN, DEPARTMENT HOME AFFAIRS, THE MINISTER OF HOME AFFAIRS, and THE DIRECTOR GENERAL OF THE DEPARTMENT OF HOME AFFAIRS. The citation is from the High Court of South Africa, Western Cape Division, Cape Town. The judgment was delivered electronically on Thursday, 6 March 2025.


Reportability


This case is reportable because it challenges the administrative practice of the Department of Home Affairs in Cape Town, specifically focusing on the screening process applied to applications under the Citizenship Act, Act 88 of 1995, and the Births and Deaths Registration Act, Act 51 of 1992. The case raises important questions about the limits of administrative discretion and whether the process employed constitutes an impermissible form of gatekeeping that denies individuals access to public services.


The significance of this case lies in its examination of whether officials in Cape Town have the authority to refuse the acceptance of applications without providing clear, written justifications. It delves into the broader implications for access to justice and fairness in administrative procedures, particularly when such practices may contravene constitutional guarantees. The outcome of this case holds potential ramifications for how bureaucratic discretion is exercised in public administration.


This judgment also contributes to the discourse on administrative law and the protection of applicants’ rights, establishing a framework to evaluate the legality of informal practices that may affect the effective delivery of government services. The reasoning in this case will be influential in guiding future disputes involving administrative procedures and the balance between efficiency and accountability.


Cases Cited


No specific previous cases were cited with full citations in the provided judgment. The discussion in the judgment instead focuses on statutory interpretation and administrative practices without referencing established case law decisions by name.


There was no reliance on abbreviated case citations, therefore no full case citations are available from the text. The judgment appears to be predominantly an interpretation of the statutory framework and administrative process involved.


Any comparable precedent would need to be inferred from the interpretation of legislation rather than direct case referrals in this judgment.


Legislation Cited


The judgment references the Citizenship Act, Act 88 of 1995, which governs the applications for citizenship, and the Births and Deaths Registration Act, Act 51 of 1992, which deals with the registration of births and deaths. These statutes form the basis for the applicants’ submissions and the administrative framework within which the Department operates.


By invoking these Acts, the judgment highlights the legal standards that the administrative procedures must adhere to, ensuring that the discretionary screening process falls within the statutory authority. The legislation also underscores the importance of non-discriminatory access to public services in accordance with statutory requirements.


These pieces of legislation are central to the controversy, as the applicants argue that the Department’s process, when deviating into gatekeeping, is inconsistent with the legal rights provided under these statutory instruments.


Rules of Court Cited


No specific rules of court were cited in the judgment. The focus of the judgment remains on statutory interpretation and administrative discretion rather than procedural rules.


The absence of any mention of court rules suggests that the core of the dispute is rooted in substantive administrative law rather than procedural matters. The judgment does not address any application of formal rules of court in its reasoning.


As such, the analysis primarily considers the constitutional and statutory framework applicable to the Department’s screening process without referencing any explicit rules of court.


HEADNOTE


Summary


The judgment concerns an application brought by several applicants who allege that the screening process at the Cape Town office of the Department of Home Affairs is conducted in a manner that unlawfully prevents their applications for citizenship and vital registration services from being properly submitted. The applicants argue that rather than merely screening applications for deficiencies, the officials are engaging in gatekeeping by outright refusing defective applications without providing formal justifications.


In addressing these claims, the court examines whether the officials in Cape Town are legally empowered to refuse applications based on their discretion under the applicable statutes. The contention is that such a practice not only obstructs access to essential public services but also falls outside the bounds of both constitutional authority and statutory provision.


The court’s task is to delineate the boundaries of administrative discretion and determine if the actions of the screeners constitute an impermissible overreach that deprives applicants of a fair administrative process. This evaluation involves a careful balance between effective administrative management and the protection of the applicants’ legal rights.


Key Issues


The first key issue is whether the screening process employed by the Department’s officials in Cape Town amounts to unlawful gatekeeping that violates the rights of individuals seeking to file applications under the Citizenship Act and the Births and Deaths Registration Act. The applicants assert that the refusal to accept applications, without offering a proper administrative or written justification, is tantamount to denying access to constitutional rights.


A second issue centers on the scope of the administrative power delegated to these officials. The court is tasked with interpreting whether the officials’ discretion to refuse defective applications is inherently limited to merely advising applicants of deficiencies or whether it extends to a final decision on the acceptability of the application. This evaluation is critical in determining if the officials have exceeded their statutory and constitutional jurisdiction.


The third issue involves the broader implications of this practice for public administration, including the accountability of officials and the potential erosion of a transparent appeal process for those whose applications are rejected. The analysis considers if the current practice leaves applicants without any formal recourse for review or appeal, thereby undermining the principles of administrative fairness.


Held


The Court held that the administrative screening process, when confined to the verification of applications against a checklist and the provision of advisory information, is within the legal authority of the Department’s officials. The decision emphasized that while the applicants’ concerns about door-step gatekeeping are serious, the evidence did not conclusively demonstrate that the officials had overstepped their administrative functions.


In its reasoning, the Court observed that the officials in Cape Town perform a clerical function intended to facilitate the transfer of applications to the decision-making center in Pretoria. The judgment noted that any shortcomings in the communication of deficiencies did not automatically render the screening process unlawful or unconstitutional, provided that the process remains fundamentally administrative in nature.


Furthermore, the Court found that the allegations of a lack of recourse for applicants, though significant, did not establish that the conduct of the officials amounted to an abuse of power under the Citizenship Act or the Births and Deaths Registration Act. The ruling underscored the need for clearer administrative protocols rather than declaring the current system inherently ultra vires or unconstitutional.


THE FACTS


The facts of the case reveal that applicants, including a law firm and individual clients, have repeatedly encountered a situation where their applications for citizenship and registration of vital events were refused at the Cape Town branch of the Department. The officials, tasked with screening applications, conducted the process using a checklist to determine whether an application was complete before transferring it to their peers in Pretoria. This basic administrative function is at the heart of the dispute.


The applicants allege that when an application is deemed deficient, the officials not only advise on the shortcomings but also prevent the application from being registered or formally acknowledged. This practice, they contend, is carried out without a formal written explanation or any mechanism for appeal, effectively creating a barrier to accessing public services. The applicants supplied detailed affidavits explaining instances where applications were refused, sometimes accompanied only by informal and unclear verbal explanations.


Moreover, specific instances illustrate the broader problem: one applicant was told that only individuals with a South African parent could register a birth, while another was erroneously declared an illegal foreigner despite having dual citizenship. These individual cases highlight the inconsistencies and alleged arbitrariness of the screening process, prompting the applicants to seek judicial intervention to correct what they deem unlawful administrative conduct.


THE ISSUES


The primary issue before the Court is whether the refusal by Cape Town Department officials to accept applications, based on their screening process, amounts to an unlawful act of gatekeeping that undermines the applicants’ constitutional rights. The tension arises because the applicants are challenging a routine administrative function by arguing that the discretion exercised by the screeners exceeds their legally permitted authority.


Another issue is whether the statutory framework under the Citizenship Act and the Births and Deaths Registration Act supports a strictly advisory role for the screeners, or whether it inadvertently grants them the power to make substantive decisions about an application’s acceptability. The court needed to determine if such administrative discretion is sufficiently outlined in the legislation to justify the actions taken by the officials.


Additionally, the Court was confronted with the question of administrative accountability. The applicants argue that the lack of written reasons and any subsequent review mechanism leaves them without a meaningful way to challenge decisions, thereby breaching principles of fairness and transparency in public administration. This issue further underpins the broader implications regarding the balance between bureaucratic efficiency and the protection of individual rights.


ANALYSIS


In its analysis, the Court scrutinized the nature of the screening process to determine whether it was merely an administrative check or a decisive act that denied service unlawfully. The Court noted that the statutory mandates under the Citizenship Act and the Births and Deaths Registration Act primarily envisaged a clerical function for officials in the Cape Town office. It was stressed that the screening process, as defined by the Department, is intended to verify the completeness of an application and not to act as a final arbiter on its merits.


The reasoning further emphasized that while verbal advisories and informal explanations are not ideal, they do not in themselves constitute a breach of constitutional guarantees if the overall process remains within the bounds of administrative discretion. The Court underlined that the officials were not making adjudicative decisions but were instead fulfilling a procedural role to ensure that only complete and properly formatted applications reached the central decision-making body in Pretoria.


Moreover, the Court recognized the concerns regarding the absence of a clear appeal mechanism but found that the remedy should lie in administrative reform rather than judicial invalidation of the screening process outright. It concluded that the statutory framework, if interpreted strictly, does allow for the discretionary exercise of a screening function without necessarily impinging on the rights of applicants if proper procedures are eventually followed.


REMEDY


The remedy discussed in the judgment focuses on addressing the administrative shortcomings rather than overturning the fundamentals of the Department’s screening process. The applicants sought a mandamus order to compel the Department to accept and process applications at its Cape Town office and ensure their timely transfer to the adjudicators in Pretoria. The Court, however, did not entirely agree that such an order was warranted in light of the discretionary function performed by the screeners.


Instead, the judgment suggests that the remedy should focus on improving the administrative protocols by ensuring that any reasons for rejecting an application are clearly communicated and that a mechanism for review is instituted at the Cape Town office. The Court emphasized the importance of procedural fairness and transparency, recommending that administrative guidelines be revised to better inform applicants of the deficiencies in their submissions.


Furthermore, the ruling indicates that while the applicants’ concerns are valid, the solution lies more in administrative reform rather than judicial intervention to redefine the scope of the screeners’ authority. This measured approach seeks to balance the need for effective administrative management with the protection of individuals’ rights, avoiding unnecessary judicial overreach into routine administrative matters.


LEGAL PRINCIPLES


The case reinforces the principle that administrative discretion, when exercised within the confines of a statutory framework, should not automatically be deemed unconstitutional or ultra vires. The Court reiterated that officials performing clerical functions, such as screening applications, operate with a degree of discretionary power that is inherent in administrative processes, provided their actions remain procedural and do not substitute for substantive decision-making.


Another legal principle that emerges from the judgment is the necessity for transparency and accountability in administrative procedures. The Court stressed that while it is acceptable for screeners to advise applicants on deficiencies, there must be clear communication of the reasons behind any rejection, and applicants should have access to some form of remedial process. This principle upholds the broader values of procedural fairness in public service administration.


Finally, the judgment underscores the importance of adhering to the statutory mandates as defined in the Citizenship Act and the Births and Deaths Registration Act. The ruling emphasizes that the interpretation of these Acts should facilitate access to public services without overstepping the prescribed administrative roles. This legal principle ensures that deviations from established procedures are addressed through administrative reform rather than by undermining the statutory authority granted to public officials.

IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
In the matter between:
DE SAUDE SADAT DARBANDI
IMMIGRATION ATTORNEYS IN CORPORA TED
LAURIE ANTONIE SUTHERLAND-MACLEOD
CHRISTOPHER CLAASSEN
ALBERTO ESPEL ALONSO
HONG LIANG CHEN
HONG YING CHEN
TANJA BIERMAN
SIMBA MILIMO PHIRI
and
THE ACTING PROVINCIAL MANAGER,
WESTERN CAPE DEPARTMENT OF HOME AFFAIRS
THE DISTRICT DIRECTOR, CAPE TOWN
DEPARTMENT HOME AFFAIRS
THE MINISTER OF HOME AFFAIRS
THE DIRECTOR GENERAL OF THE Case No: 17216/2023
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
Eighth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
DEPARTMENT OF HOME AFFAIRS
NZIWENI, J
Introduction JUDGMENT DELIVERED ELECTRONICALLY:
THURSDAY, 6 MARCH 2025 2
[1] The issue which is at the heart of the dispute in this application , involves access
to services rendered by the Department of Home Affairs ("the Department"). These
proceedings centre around the screening process implemented by the Department
when individuals seek to file applications in terms of the Citizenship Act, Act 88 of
1995 and/ or Births and Deaths Registration Act, Act 51 of 1992 (the Statutes"). The
applicants are aggrieved by the screening process employed by the Department. They
perceive the screening process as an impediment to their access to a public service.
[2] The current litigation finds its genesis in alleged problems associated with the
submission of application forms at the Cape Town branch of the Department.
However, the critical inquiry that arises in this context is the entitlement of the
Department's officials in Cape Town ("the screeners") to refuse to accept applications
they perceive to be defective.
[3] It is common ground between the parties that the individuals who wish to submit
applications in terms of the Statutes are frequently turned away without their
applications being accepted and transferred to the appropriate decision-making
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authority within the Department, situated in Pretoria. The applicants characterise the
failure by the screeners to allow them [applicants] to submit applications as a form of
gatekeeping. Furthermore, the applicants contend that the Cape Town offices of the
Department engage in a pervasive practice of "gate keeping."
[4] The applicants argue that the screeners who refuse to accept applications are
not legally authorised to make any decisions on these applications, with respect to the
illegalities. Consequently, the applicants seek an order declaring the conduct of the
screeners to be inconsistent with the Constitution of the Republic of South Africa and/
or ultra vires the Statutes as well as unlawful.
[5] The application is strenuously opposed by all the respondents. The Department
refers to the process as a 'screening' of applications prior to their acceptance,
capturing and dispatching to the Pretoria hub. The Department maintains that the
screeners in Cape Town perform a bureaucratic or administrative function of screening
applications in terms of checklists.
The parties
[6] The first applicant is a law firm that specialises in immigration law; the second
to eight applicants bring the application in their own names and interests. In addition,
the second to eight applicants are clients of the first applicant. According to the
founding affidavit, the second to eight applicants have been affected by what they refer
to as a "gatekeeping conduct" of the Department's employees.
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[7J The first respondent is the Acting Provincial Manager, Western Cape, the
second respondent is the District Director, Cape Town. The third respondent is the
Minister of Home Affairs.
[8] In essence, the applicants are also seeking a mandamus order that would
compel the respondents to accept the applications of the second to eight applicants at
the offices of the Department in Cape Town and to take the requisite steps to transfer
the applications to the appointed adjudicators within the Department [in Pretoria], to
decide whether to grant or reject the application.
[9] The events giving rise to the instant motion have been explained in detail in the
founding affidavit and supporting affidavits of the applicants. In this judgment I will give
a brief summary of certain critical background facts in order to establish the context in
which I must decide the matter. The context of the dispute can be succinctly
summarised as follows.
The background
[1 OJ The starting point, of course, is that it is commonly acknowledged ground in this
matter that the authorities who are vested with the powers related to the status of
persons in South Africa are located in Pretoria. According to the applicants, the role of
officials in Cape Town are clerical in nature. This [role] includes accepting of
applications, the provision of receipt and reference numbers, and thereafter,
transferring the applications to the officials in Pretoria.
5
[11] The first applicant [law firm of attorneys] alleges that each and every time it
takes clients to file applications at the Cape Town office, officials at that office have
irregularly and arbitrarily been refusing to accept the applications and [from the
Department's perspective] it is as if no application was ever filed. To buttress this
contention, the first applicant emphasises that when the acceptance of the
applications is refused, there is no written justification provided. However, when verbal
reasons are given, they are frequently informal and difficult to comprehend. Therefore ,
this Court is called upon to declare the impugned practice by the Department's
employees unlawful and unconstitutional alternativel y ultra vires.
[ 12] At the heart of the applicants ' argument is the contention that the applicants are
not attempting to obstruct the Department 's front office officials from "screening",
which involves scrutinising of applications and offering advice thereon. There is no
suggestion that they [the Cape Town officials] cannot peruse the applications. The
applicants contend that they accept that officials may review applications and verify
them against the checklist, to ensure compliance. However, it is the applicants'
contention that the officials' main task is to give advice if an application is deficient.
[13] As previously noted the applicants contend that the problem arises when the
screening process becomes gatekeeping , meaning that the officials not only provide
advice, but also make the decision to refuse such applications.
[14] As previously mentioned, the applicants assert that this litigation concerns
those applications that are rejected by the Department's Cape Town officials without
6
being placed before the competent person to make a determination regarding the
applications. The founding affidavit further asserts that after the rejection of an
application , there is no reference number provided, no transmission to other officials
within the Department, no decision to be made, or formal outcomes following the
rejection. Accordingly, the applicants submitted that an inevitable corollary of this is
that there is no course, scope, or avenue open to the applicants for appeal or review.
[15] The applicants seek to prevent the Department from continuing with the
practice, which they consider as an unlawful practice by the personnel at the Cape
Town branch of the Department. On that premise, it is submitted in the founding
affidavit that this litigation is not concerned with the decisions made on the merits by
lawful~empowered officials who provide formal outcomes , even if such decisions are
flawed or open to review.
[16] In order to gain a more comprehensive understanding of the reasons the
applicants sought redress from this Court, it is both necessary and expedient to
provide a detailed account of the allegations made by the second to eighth applicants
at this juncture.
The tension between the second to the eight applicants and the Department
[17] The second applicant alleges that she was denied the opportunity to file her
application to register her birth. She was informed that this was due to the fact that
only individuals with a South African parent could apply.
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[18] In respect of the third applicant, according to his submission, he is both a
Namibian and a South African citizen by birth. When he went to file an application for
an issuance of a certificate confim,ing his South African citizenship, he was turned
away by an official who claimed that he was an illegal foreigner.
[19] When the fourth applicant went to file an application for naturalisation as a
citizen, it is alleged that he was told that he would not be able to file his application
unless he provided an additional verification of his permanent residence pem,it. This
is in spite of the fact that a copy of his permit was included in his application, and an
original verification of the permit obtained from the Department.
The fourth respondent also alleges that he was asked to provide a fingerprint
clearance from the South African Police Service. The applicants contend that the
Statutes do not include this specific fonn.
[20] The fifth and sixth applicants were prohibited from submitting citizenship
applications. The reason given to them by the officials in Cape Town was that their
parents wrongfully and fraudulently obtained pennanent residence and/or citizenship.
They were informed that they were illegal foreigners and refused help.
[21] The seventh respondent submitted an application for the late registration of her
birth. She was informed that her application would not be forwarded to Pretoria up until
she provided a DNA test that verified her relationship with her South African father and
8
a form signed by her father. According to the applicants none of the requirements were
in terms of any legislation.
[22] It is alleged that the eighth applicant, was also prohibited from submitting his
citizenship application because an official told him that an investigation was underway
against him, which rendered his application ineligible for acceptance. It is alleged that
he was not given the details of the investigation. It is also alleged that to this date he
has not been able to apply for citizenship.
Applicant's submissions
[23] The Applicants contend that gatekeeping does not create any significant
administrative benefit for the Department. According to the applicants , the Director
General of the department ("DG") presumes that the Department officials consistently
behave in compliance with his expectations. The applicants argue that the DG has
developed a version of gatekeeping which has no basis in reality. In these
circumstances , the applicants argue that gatekeeping permits incompetent officials to
prevent persons from accessing vital civic services granted under, inter alia, the
Statutes.
[24] The founding affidavit asserted that the refusal to accept the documents is
distinct from refusal on the merits, as it prevents applicants from receiving the services
provided for in the Statutes. Therefore, the applicants contend that in the event that
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an application is rejected, it cannot be evaluated to ascertain whether it should be
approved or rejected.
[25) Only by complying with the demands of the official present on the day can
applicants ensure that their applications are taken in by the Department and brought
to the attention of the Department's proper adjudicators and potentially granted.
[26] The applicants advance the argument that the unknown government officials
[the department employees) who handled the applications filed in terms of the Statutes
were at all times acting within the course and scope of their duties to the respondents.
[27) According to the applicants, various applications are lodged with the
respondents in terms of the Statutes. The applicant further alleges that the officials
delegated with the decision-making powers are located in Pretoria. It is the applicants'
assertion that they were never provided with any evidence that the officials in Cape
Town are authorised to make final decisions on applications under the Statutes.
[28] According to the applicants' argument , the officials in question lack competence
and are unable to decide what constitutes a meritorious application. They insist on
documents which are not prescribed by law, they are unreasonable , superfluous or
simply impossible to provide. It is asserted in the founding affidavit that some of the
applicants were turned away many times by the said officials before they accepted
their applications . As a consequence of such gatekeeping , there is significant and
10
prejudicial delays in the finalisation of claims to South African citizenship.
Consequently, it is argued that gatekeeping puts the applicants at the discretion of
local officials who do not read the application, do not comprehend the facts, lack legal
expertise, and impose flawed and/or meaningless requirements on applicants.
[29] The applicants further assert that the gatekeeping renders the application
process arbitrary, unpredictable and capricious, as one cannot foresee which officials
will demand what document before an application will be accepted.
[30] The applicants contend that gatekeeping also increases the risk of corruption ,
as Department officials may exploit the prospect of gatekeeping to extract bribes from
desperate applicants.
[31] The applicants contend that the parties are confronted with requests for
extraneous documents that are both manifestly unnecessary and unlawful in terms of
the provisions of the Statutes.
The Respondents' submission
[32] First, the respondents addressed the applicant's contentions by clarifying what
they consider to be a misconception on the applicants' part regarding the role of the
Cape Town officials and the character and extent of their clerical responsibilities.
According to the respondents , Cape Town officials are not gatekeepers, rather they
are frontline officers who are performing their duties pursuant to the Statutes. The
11
respondents further submit that the Cape Town officials' duties entail screening of the
applications.
[33] The respondents also state that the official also have other functions that
include attending to the queues and interviewing the potential applicants in terms of
Batho Pele policy principles.
[34) These functions are referred to as 'walkabouts' by the respondents. According
to the respondents, these walkabouts entail asking individual applicants as to what
assistance they require, to ascertain if they are queuing in the correct line, and prior
to handing in the forms check if the applicant is in possession of the required
documents. The respondents refute the existence of gatekeeping in the Western
Cape. It is argued that the screening of applications prior to their posting is a
reasonable and rational practice that is intended to conserve time and resources for
both the Department and the applicants. It is further asserted that the contention by
the applicants that the official's insistence on compliance with the checklist is unlawful,
is incorrect.
[35] It is contended on respondents' behalf that if proper screening of applications
prior to posting is not done, the officials at the hub in Pretoria will be overwhelmed with
incomplete forms. It is also asserted on respondents' behalf that the Department
processes vast volumes of matters which involve members of the public. If the public
is allowed to abuse the system by insisting that their non•compliant applications be
12
taken in, that would result in undesirable outcomes for both the applicants and the
Department.
[36] According to the respondents, the officials involved in the screening do not
decide the merits of the application. Therefore, to some extent, their clerical functions
involve ensuring that the items in the checklist to be submitted with the application
forms are in order.
[37] It is asserted that the applicants fail to comprehend and distinguish between
the different roles that the Department's officials fulfil their duties in terms of the
Statutes. According to the respondents, there are three main processes involved in
the different offices of the Department for the purposes of an application, which are:
• Firstly, all applications are screened by officials at the point of first
contact to ensure that the forms are accompanied by the necessary
documents as set out in the relevant checklist for the application.
• Secondly, all applications are captured onto the system for record and
reference purposes.
• Thirdly, after the completion of the screening and capturing process, the
applications are posted to Pretoria for consideration and decision
making on the merits.
[38] The respondents maintain that the checklists that officials in Cape Town offices
utilise to screen applications should be viewed within the context of paragraph (f) of
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section 23 of the Citizenship Act. As such, the officials are not acting ultra vires in
insisting that applications be compliant with the Checklist items and /or requirements.
Similarly, the checklist for registration of births and deaths are in terms of section 32
( 1) of the Registration Act. According to the respondents, these regulations and
checklists are designed to assist applicants and officials of the Department to facilitate
applications.
[39] The respondents assert that, despite the fact that the checklist was not adhered
to, they accepted, captured, and posted the applicatio ns of all other applicants to
Pretoria, with the exception of Mr. Classen's application. This was a result of the
pressure exerted by the first applicant.
[40] The Department is refusing to discontinue the practice because it believes that
it is a legitimate and necessary screening process.
[41] Therefore, the question that must be resolved in this case is straightforward.
Whether the refusal to submit applications to the Pretoria centre that are perceived as
non-complainant is gatekeeping, and as a result, unconstitutional and unlawful.
The law
[42] The principle of fair administrative action is a fundamental structural feature of
the South African Constitution (" the Constitution") and is expressly guaranteed under
section 33. Section 33 played a vital role in the development of the Promotion of
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Administrative Justice Act, Act 3 of 2000 ("PAJA"). Section 33 ( 1) of the Constitution
guarantees the following right:
"Everyone has the right to administrative action that is lawful,
reasonable, and procedurally fair."
[43] Pursuant to the provisions of section 33 of the Constitution, procedural fairness
is the cornerstone of our administrative law. PAJA affords members of the public that
are affected by administrative decisions the right to be informed that a decision is to
be taken, to be given written reasons for decisions and to have decisions reviewed in
court. PAJA also specifies the manner in which legal powers of the administrators
must be exercised.
Evaluation
[44) The Department is an administrative authority that is responsible for number of
governmental and public functions. Conversely , the Constitution vests a responsibility
to the courts to protect rights that are enshrined in our Constitution and to scrutinise
government policies and procedures to ensure that they are predicated on
Constitutional values.
(45] The courts provide the public with a means to hold to hold the government
accountable for its policy decisions . Therefore, members of the public are entitled to
approach a court and seek redress if they feel aggrieved by a policy of government. I
am, however, mindful that the court must accord significant measure of deference to
15
governmental policy choices. In other words, if the decision of the Department is fair,
lawful and involves proper considerations deference should be accorded.
The aim of screening
[46) It Is undeniable that the Department receives an overwhelming number of
applications in terms of the Statutes. As a result, the Department is compelled d to
draft solutions to mitigate and alleviate the burden of the substantial volume of
applications that are received at the Pretoria hub. This, amongst other things, is to
ensure that the service rendered is sustainable. Thus, the screeners mitigate the
burden by limiting the number of applications that may be presented to the Pretoria
hub.
[47] The screeners are necessary and perform a valuable, sensitive, and extremely
important service to the Department and members of the public. Screening is Intended
to enhance the quality of services and increase efficiency, among other objectives.
[48] Due to the early elimination involved in the screening process, significant time
and costs are saved and not expended on a defective application . This does not imply,
however, that the screening process should be a mechanism that creates a barrier to
the accessibility of public services system.
[49] The aim of the screening process is to verify whether an application satisfies all
the checklist requirements prior to its submission to the Pretoria hub. Similarly, it
16
entails making sure that members of the public have access to the services offered by
the Department's Pretoria hub. Thus, it is imperative that the screening should be
administered by skilled officials.
[50] As such, the screening function is an initial stage that is not intended to be an
assessment exercise or to make findings of fact or law. Consequently , it is a matter of
common sense that at the screening stage the threshold is low.
[51) Screening necessitates the responsible exercise of authority and fairness. This
is due to the fact that the officials who serve as screeners are clothed with immense
power that if exercised wrongly, may immensely prejudice an individual. As such, it is
in the public interest that the Department's screeners should be honest, accurate,
objective, impartial and free from undue influence and abuse of power. The officials
conduct should at all material times instill public confidence in the screening process.
To do otherwise would be a patent misuse of official power and authority granted to
the official.
[52] In the context of this case, the screeners are intended to act as an intermediary
between an applicant and the Pretoria hub to prevent and curtail unnecessary delays.
Accordingly, this necessitate s a process of screening through numerous applications.
In doing so, the officials are, in effect, the principal screeners determining what
applications should or should not advance.
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[53] Therefore, as mentioned previously they wield considerable authority, insofar
as it pertains to the determination whether, or not applications of persons would be
accepted, processed and reach their intended destination [Pretoria hub] for a decision.
Does the practice by the Department offlclals amount to gatekeep/ng or
screening?
(54] The Department refutes the assertion that the screening process conducted by
its officials in Cape Town constitutes gatekeeping.
[55] The phrase "gatekeeper'' signifies access control. It is evident that there are
several forms of gatekeeping, particularly in the public sector. However, there is a
distinction between gatekeeping and the screening. While gatekeeping may be distinct
from the screening process, it does, however, contain elements of screening. In my
view, the definitions of 'gatekeeping ' and ·screening' are supplementary and not
mutually exclusive.
[56] This Court should exercise caution in prioriUsing semantics and labels over
substance.
[57] The applicants state that the problem arises when screening is conducted by
the officials in Cape Town and is transformed into gatekeeping . Thus, of greater
concern in this matter is when the Department screening officials do not merely offer
18
advice but take the decision to refuse to accept applications on the basis that an
applicant does not meet the screening criteria. It is, however, significant to note that it
is not denied by the respondents that the Cape Town screening officials do refuse to
take forms from applicants that are viewed to be non-complaint with the Statutes or
Regulations.
[58] For instance, the respondents admit that they have screening processes that
are done in terms of the Statutes or Regulations in order to ensure that the applications
submitted by individuals to the Cape Town office meet all the checklist requirements
before they are accepted and dispatched to the Pretoria hub.
[59] According to the applicants ' argument, the officials at the Department offices
who refuse to accept applications serve as extra-legal "gatekeepers ." Additionally, the
applicants assert that the Department's officials often demand documents that are
simply not necessary and on the checklist.
[60] In essence, this implies that the screening mechanism implemented by the
Department may have an effect of limiting the access to the services offered by the
Department. That then means that the applicants' submission that the screening done
by the Department can easily turn to gatekeeping by simply declining to accept their
application, is well founded.
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[61) Therefore , it seems apparent to me that the Department's officials in the Cape
Town offices are engaging in gatekeeping by declining to accept applications that they
consider to be defective. The argument before this Court proceeded on the footing
that the question to be asked is whether the practice by the respondents' gatekeepers
is unlawful.
Do the screening officials of the Department in Cape Town have the power
to refuse to accept an application and to determine the question of law?
[62} As mentioned earlier, the Department has implemented a mechanism for
dealing with the influx of applications . Central to this mechanism is procedural fairness
and administrative efficiency. In the present case, of course, the applicants have been
at pains to point out that they do not have a problem with the screening of the
applications , but as long as the process does lead to the refusal to accept applications
that the officials deem to be defective.
[63) The officials of the Department do not constitute the decision-making body.
That is the role of the Pretoria hub. It is the Pretoria hub that is charged with the duty
of deciding issues related to the Statutes. The fact that the officials of the Department
in Cape Town do screening does not change that. It appears from the affidavit of the
DG that the task of the officials is to deal with the intake of applications and to screen
them for proper disposition.
[64] At the same time, the screening process is not intended to make a preliminary
decision as to whether an application proceeds to the Pretoria hub or not. Similarly,
20
the screening process is not to weigh the prospects of the application. Thus, while the
screening process may help with early identification of defective applications, the
screeners do not have the final word as to whether an application should be accepted
for submission to the Pretoria hub.
[65] This conclusion is further bolstered by the affidavits in this matter, which
demonstrates that the Department officials responsib le for screening in Cape Town
lack certain levels of expertise to make decisions regarding the applications, including
questions of statutory interpretation . As such, in the performance of their screening
functions, officials do not have a wide latitude in the execution of their filtering
responsibilities. Inter alia, though the screening officials have the power to screen,
they do not have the power to refuse to accept an application.
[66] Clearly, in the circumstances where an applicant who is of the opinion that the
screening officials have not conducted an accurate evaluation of their application, has
no recourse if they refuse to send it to the Pretoria hub. Hence, this Division has its
fair share of cases that dealt with the refusal of screeners to dispatch cases they
viewed to be non-compliant to the Pretoria hub.
[67] The refusal to accept applications and not refer them to the Pretoria hub
notwithstanding the defect, amounts to an assumption by the Department's screening
officials of a decision-making role for which they do not have a mandate. The
screening officials are not authorised to refuse to dispatch an applicant's application.
Particularly , if an applicant maintains that the application is compliant.
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[68] There is nothing in the papers of the respondents or the Statutes to indicate
that the screening officials, when they conduct the checklist, have a discretion or
mandate to refuse to accept an application on grounds that it has failed to comply with
the checklist. In essence, the screening officials lack the statutory mandate.
[69] The Department officials. to one degree or another, have the power to evaluate
the applications. The checklists and the regulations are guiding tools for them. The
Department's Cape Town officials serve a distinct function from the officials at the
Pretoria hub. The responsibility of the Cape Town officials does not involve the
rejection of an applicant's application. It is evident that their function is to ensure. as
far as possible, that the application adheres to the checklist. However, they are not
authorised to make a determination regarding the application if it does not comply with
the checklist.
[70] Refusal to accept the application would be unfair and violate the rules of natural
justice as it inter a/ia does not provide an applicant with an opportunity to respond to
the screening officer's concerns. Thus, it is pertinent to note that the screening officials
have no discretion with respect to accepting or refusing the applications. Moreover,
the negative effect of the refusal to dispatch the application to the Pretoria hub, is that
the screening official does not owe the applicants any procedural fairness.
[71] Thus, when the screening officer refuses to accept the application , he deprives
the applicant of meaningful participation in the application process and the opportunity
to be fully heard. Additionally, the individual is unable to appeal or take the screening
22
decision on review. In such circumstances, as previously mentioned, the refusal
amounts to an extra-legal measure that obstructs access to services. It becomes
gate keeping.
[72] The practical and functional advantages of having a screening body cannot be
understated . Notwithstanding that, the officials cannot usurp the power that they do
not have.
[73] The courts are not inclined to interfere with the functions of government
agencies; however, they may do so if they fail the legality test. Then, the court is
required to intervene.
Considered In the context of this case, can it be said that screening is
inconsistent with the constitution and ultra vires the Statutes?
[74] So far as the ultra vires is concerned, an action of a public official may be
unlawful when an official goes beyond his or her delegated authority, enforces
requirements that are not established by law, or acts in a manner that is arbitrary or
capricious. The screening powers of the officials are limited to the parameters and
guidelines as stipulated in their [screeners] checklists.
[75] The checklist was clearly designed to be efficient, as it is intended to conserve
time and resources of the Department. The relevant statutes and regulations provide
an insight into the mandate given to the Department officials.
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[76] The applicants are challenging the authority of the screeners [officials in Cape
Town] to refuse to forward their applications to the Pretoria hub if they are of the view
that they do not satisfy the checklist criteria.
[77] Certainly, the regulations and statutes do not state that the screening officials
may refuse to accept the application, even if an applicant insists that it should be
accepted. By necessary implication, when the screening officials enforce requirements
that are not stipulated in the regulations or the statute, they are overstepping their
authority. Thus, when the screening official refuses to accept an application he or she
oversteps his or her authority. Thus, acting ultra vires.
[78] The moment a public official acts ultra vires that process becomes tainted as it
is not transparent and affects procedural fairness that result in exclusionary practices.
In Al/pay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive
Officer of the South African Social Security Agency and Others (CCT 48/13) (2013]
ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013), at
paragraph 24, Justice Froneman stated that procedural requirements play a role in
ensuring even treatment of bidders, thus, they cannot be ignored. And that the purpose
of a fair process is to ensure the best outcome. The Constitutional Court further states
through Froneman J the following:
"If the process leading to the bid's success was compromised, it cannot be
known with certainty what course the process might have taken had
procedural requirements been properly observed ."
24
[791 Similarly, in the present case, to borrow the words of Froneman J, this means
that if the process leading to the refusal to dispatch the application to the Pretoria hub
is tainted, it cannot be known with certainty what course the process might have taken
had procedural requirements been properly observed .
[80] In My Pride Smile Africa (Pty) Ltd and Another v Umzimvubu Local Municipality
(2313/2022) (2023] ZAECMKHC 44 (6 April 2023), at para 24, the following was stated
"Administrative action which is not in accordance with the law is unlawful
. . . Although the Board may develop legislation, it does not have the
power to make legislation."
[81] I am thus satisfied that when the screening officer refuses to send an
application to the Pretoria hub, he or she acts ultra vires.
Rule 16A notice
[82] The provisions of Rule 16A are mandatory. In the circumstances of this case, I
am not satisfied that the applicant's post facto attempts to remedy the defect of not
complying with the provisions of Rule 16 A is sufficient. This is due to the fact that the
applicant wanted to cure the defect when this Court was already seized with judgment.
Because of the non-compliance with the provisions of Rule 16 A. I am not going to
declare the conduct unconstitutional. In any event, the prayers that the applicants
sought were in alternative.
25
Acceptance of some of the applicants' applications.
[83] The evidence of DG regarding this aspect is mainly hearsay evidence. It is
established that hearsay evidence is inadmissible, unless there is an exception to the
rule. The DG did not give a reason why the hearsay evidence should be admitted. As
such, no leave of this Court was sought for the admission of the hearsay evidence.
Consequently, this Court cannot place reliance on the hearsay evidence.
Conclusion
[84] I deem it necessary to propose the following guidelines to the Department to
ensure procedural fairness.
Guidelines
• If, after the screening process, an applicant does not meet the criteria
specifically in the Statutes or Regulations, and the screener is not to place
the application on the list of applications that are to be dispatched to the
Pretoria hub; the applicant should be advised of the deficiency or
deficiencies in the application.
• In the event that an applicant disagrees with the screening results and
insists that the application should be forwarded to the Pretoria hub
notwithstanding the deficiency or deficiencies , such application should be
dispatched to the Pretoria hub, to a specific point that handles applications
that are primarily viewed as being non complainant.
• This point may be regarded as a verification point and should be mandatory
once the applicant, after an unsuccessful screening process, persists that
an application should be dispatched to the hub in Pretoria.
26
• If the verification point does agree and concludes that the application is
deficient, it can require further information and dismiss the application if the
required information is not provided within a specified time.
• It is further beyond doubt and unfortunate that an applicant who insists that
his or her application should be accepted would have to endure a long and
intense application process. The evidence in this matter and various cases
stemming from this division, establish several reasons why this procedural
step is necessary.
• This stage would ·entail the reviewing of the screening process. At that
particular point of the hub in Pretoria, the official should consider the
application perceived to be non-complaint and if the officer at the hub is also
not satisfied that the application meets the required criterion; he or she then
should issue a formal letter denying the application. All reasons for
deficiency or denial shall be stated in writing to the applicant.
• If there is no such point at the Pretoria hub to accept what are perceived by
the screening officials to be defective applications , it is highly vital that such
point should be established.
• In the event that the applicant disagrees with the outcome, he or she may
at least appeal or review the decision.
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[85] In the result, I make the following order:
Order
a. It is declared that the conduct of officials acting in the course and the scope of
their employment duties to the Respondents, who, whilst not being authorised or
delegated to do so, refuse to accept or process applications in terms of the South
African Citizenship Act 88 of 1995 ("the Citizenship Act" and /or the Births and
Deaths Registration Act 51 of 1992 ("the Registration Act'') at the offices of the
Department of Home Affairs ("the Department"), is ultra vires the Citizenship and
I or Registration Act and unlawful.
b. The Respondents are directed to accept the applications of the Second to Eight
Applicants at the offices of the Department in Cape Town and to take the
necessary steps to transfer such applications to the appointed adjudicators
within the Department;
c. The costs of this application are to be paid by the Respondents, jointly and
severally, the one paying the others absolved.
~
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Applicant:
Instructed by
Counsel for the Respondent:
Instructed by Adv D Simonz
De Saude-Darbandi Attorneys Inc.
S De Saude Darbandi
Adv OM Nyathi
State Attorney Cape
Mrs S-L Sampson 28

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