REPUBLIC OF SOUTH AFRICA
TN THE HlGH COURT OF SOUTH AFRICA
GAUTENG DNISlON, PRETORIA
Case Number: 097109/2023
( l) REPO RTABLE: NO
(2) OF INTEREST TO O THER JUDGES: NO
{3) REVISED: NO
In the matter hem 'een:
SITRUSRAND BOERDERY (PTI') LTD
and
MINISTER OF EMPLOYMENT AND LABOUR
DIRECTOR-GENERAL: DEPARTMENT OF
EMPLOYMENT AND LABOUR
MINISTER OF HOME AFFAIRS
DIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
The matter was heard in open court and the judgment was prepared and authored by
the judge whose name is reflected herein and was handed down electronically by
circulation to the parties' legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date of handing-down is deemed to be
22nd July 2025.
KEKANAAJ
INTRODUCTION
JUDGMENT
[1] The applicant seeks to review and set aside a decision that was taken by the Department of
Employment and Labour ("the Department") refusing/rejecting the applicant's application for a
letter of recommendation required in terms of section 21 of the hnmigration Act, 13 of 2002 read
with regulation 20(l)(b) of the Immigration Regulations ("the decision"). The decision involved
the refusal to issue a letter of recommendation (Working Condition and Salary Benchmarking
Certificate) required by the Department of Home Affairs ("Home Affairs") to obtain a Corporate
Visa.
[2] The decision was taken by the Department's Adjudication Committee on the 24th March 2023
and communicated to the applicant on 12 April 2023.
[3] Section 21(1) of the lrnmigrationAct reads: "Subject to subsection (lA), a corporate visa may
be issued by the Director-General to a corporate applicant, to employ foreigners who may conduct
work for such corporate applicant in the Republic."
[ 4] Regulation 2 0( 1 )(b) of the Immigration Regulations provides that when applying for a
corporate visa, the applicant must submit a completed Form 13 and provide: (a) Proof that there is
a need to employ the number of foreign nationals requested; and (b) A letter from the Department
of Labour confinning that: (i) A diligent search was conducted but no suitable South African
citizens or permanent residents were found for the positions; (ii) Job descriptions and proposed
remuneration for each foreign employee are provided; and (iii) The salaries and benefits offered
to foreign workers are not less than those offered to local employees in similar roles.
BACKGROUND
[5] The applicant, a fanning company specialising in citrus produce, grows, packs and exports
South African citrus. It required 762 workers for various positions in anticipation of the March to
October 2023 harvest season. The positions are as follows: 696 General fann workers; 52 Packers
and Auto packers; 1 Grader/sorter; 10 Carton Makers; 2 Auto Packer Operators and I
Handyinan/maintenance worker.
[6] The Applicant advertised 762 vacancies in the local newspaper in English. The recruitment
drive yielded only 15 applications. None of the applicants were found suitable for the positions.
On 10 February 2023, the applicant applied to the Department for a letter of recommendation as
required in terms of section 21 of the Immigration Act, read with regulation 20(1)(b) of the
Immigration Regulations, alleging that it could not find suitable locals to fill the positions.
[7] The applicant sent a letter contemplated in Regulation 20(1 )(b) of the Immigration Regulations
for purposes of obtaining a corporate visa to employ foreign workers to fill the 762 posts. In
response the Department referred a list of 1244 potential candidates via email to the applicant on
several dates as follows:
7.1 On 24 February 2023, a list of 594 potential candidates was sent to the applicant;
7.2 On 26 February 2023, an additional list of 246 potential candidates was sent to the applicant;
7.3 On 1 March 2023, a list containing 122 more potential candidates was sent to the applicant;
7.4 Finally, on 22 March 2023, a further list containing 249 potential candidates was sent to the
applicant.
[8] On 24 March 2023, the Department's International/Cross-Border Labour Migration
Management Adjudication Committee ("the Adjudication Committee") convened a meeting to
adjudicate the applicant's application.
[9] On 11 April 2023, the applicant offered written feedback to the Department on the recruitment
drive it had conducted following interviews with those who had responded to advertisements that
had been placed in various community halls within Sunday's River Valley and surrounding areas,
and those who had been referred to the applicant by the Department ("the feedback").
[10] In the feedback, the applicant indicated to the Department that 1 759 candidates applied for
the posts, but only 58 candidates were successful. On the 12th April 2023, the Department
transmitted an email to the applicant communicating the decision. The decision is contained in the
Department's letter dated 11 April 2023, in which the Department communicated that the
application for a letter of recommendation is refused/rejected. The letter reads as follows:
"This letter serves to inform you that after careful consideration of your application for a Working
Conditions and Salary Benchmarking Certificate in respect of your Corporate Visa (DHA-1743)
application, the Department of Employment and Labour made a negative recommendation thereon
based on the following factor: The skill is available in the country."
[11] It is the above decision that is the subject matter of this review application.
GROUNDS OF REVIEW
[12] The applicant's grounds ofreview are as follows: (a) the department failed to consider relevant
considerations, (b) the decision is irrational; ( c) the decision is procedurally unfair
APPLICANT'S SUBMISSIONS
[13] The applicant submitted that the Department did not take cognizance of the reality that there
were only 3 candidates with the required skills, while it was looking to place 672 candidates. In
this regard, the applicant contends that the department failed to consider relevant factors. Further,
the decision is procedurally unfair because the applicant was not provided with an opportunity to
make representations before the decision.
[14] The Applicant further contends that the decision-maker failed to consider the feedback
provided on the list of potential candidates that were sent to the applicant. The basis for this
contention is that this feedback was provided after the meeting of the Adjudication Committee and
that because the decision is dated 11 April 2023, the same day the feedback was communicated to
the Department, the decision maker could not have considered it.
[15] A further submission by the applicant is that the deponent of the respondents' affidavit lacks
personal knowledge of the contents of the affidavit and the authority to make the affidavit. In the
absence of a confirmatory affidavit from one of the members of the Adjudication Connnittee, due
to her absence at the adjudication meeting, her statements are hearsay. Because the deponent did
not attend the meeting and sign the letter (decision), she was not involved in making the impugned
decision.
RESPONDENTS' SUBMISSIONS
[16] The respondents submitted that the applicant failed to demonstrate that it conducted a diligent
search, resulting in an inadequate outcome. Further, had the Applicant conducted a diligent search
and conducted interviews in good faith, it would have been able to find suitable candidates, as the
required positions are for general workers whose skills are generally available in the country.
[17] Initially, the applicant advertised only in a local newspaper in English, despite some or the
majority of potential candidates being unable to read English. This, the respondents submit, is a
lack of intention to find suitable candidates.
[18] Following the Department's assistance in recruiting potential candidates and reviewing the
applicant's reasons for not finding suitable candidates, the Department was not satisfied that the
feedback was satisfactory because it maintains the skill is available in the country. The respondent
submitted that the reasons that were provided by the applicant were considered and found wanting,
and these include:
18. INon-compliance with the application procedure;
l 8.2Insufiicient experience in roles such as packers, sorters;
I 8.3Submission of duplicate applications;
I8.4Absence of experience with citrus fanning;
18.5Lack of familiarity with packhouse operations;
18.6Insufficient understanding and poor eyesight;
18. ?Inability to perform basic counting tasks;
18.8Limited proficiency in English; and
l 8.9Failure to attend scheduled appointments/no-show.
[ 19] Finally, the respondents contend that, considering that the applicant submitted all
pertinent information through Form 13 and provided additional details through subsequent
engagement, the procedure was fair as the applicant had been given many opportunities to
present its case.
DEPONENT OF THE ANSWERING AFFIDAVIT INCOMPETENT
[20] The applicant contends that the deponent to the answering affidavit is not competent
to depose to the affidavit because the deponent did not form part of the committee that took
the decision on the 24th March 2025.
[21] The respondent contends that the deponent occupies the position of chief director of
Employee Services, a unit responsible for overseeing the issue of the certificates in
question. Further that the deponent indicated that she considered the records and the
documents in making the decision.
[22] The deponent is an official in the department and her knowledge is based on documents
which have been identified and form part of the record herein. In the answering affidavit,
the deponent places no reliance on consultation with another person to gain knowledge and
therefore the allegations contained in the answering cannot be held to be hearsay.
APPLICABLE LEGAL PRINCIPLES: JUDICIAL REVIEW
[23] It is trite that all exercises of public power must comply with the principles of lawfulness,
reasonableness, and procedural fairness, as guaranteed by section 33 of the Constitution and
codified in the Promotion of Administrative Justice Act 3 of2000 ("PAJA"). Judicial review under
PAJA is concerned with how the decision was taken, not the merits thereof (See Trencon
Construction v JDC 2015 (5) SA 245 (CC).
[24] In terms of section 6 of PAJA, administrative action is reviewable on, inter alia, the following
grounds: (a) The action was unauthorised or the administrator acted beyond their powers; (b) The
action was taken without considering relevant factors or based on irrelevant considerations; (c)
The action was not rationally connected to the purpose, the information before the administrator,
or the reasons given; (d) The procedure followed was procedurally unfair; (e) The decision-maker
was biased or acted for an ulterior purpose or in bad faith.
[25] Even where a ground of review is established, the court has a discretionary remedial power
under section 8 of PAJA, which includes setting aside the decision, remitting it, or substituting it
where appropriate.
ANALYSIS
FAILURE TO CONSIDER RELEVANT CONSIDERATIONS
[26] The applicant submitted that when the Adjudication Committee considered the applicant's
application on 24 March 2023, the feedback regarding the 1,759 potential candidates had not yet
been received, as it was only provided to the Department on 11 April 2023. It was further submitted
that the record contains no indication that, after the feedback was received on 11 April 2023, the
Adjudication Committee reconvened to consider it prior to the decision being communicated to
the applicant the following day, on 12 April 2023. Further that there is similarly nothing in the
Rule 53 record to suggest that the written feedback was considered at any stage of the decision
making process. On this basis, the applicant contends that the Department failed to take relevant
considerations into account in making its decision.
[27] The respondent submitted that the applicant failed to demonstrate that it had conducted a
diligent search. It was further submitted that, had the applicant conducted interviews in good faith,
it would have identified suitable candidates. The respondents maintained that the positions for
which the applicant sought foreign workers were for general labour, and that such skills arc
commonly available within the country.
[28] On 10 February 2023, the Director-General of the Department of Employment and Labour
(DoL) acknowledged receipt of the applicant's work visa request. The letter stated:
"As part of our thorough process, the provincial office of the Department will advertise the
job opportunity on the Employment Services of South Africa (ESSA) system, consult with
private recruitment agencies, and review national jobseeker databases to determine if the
required skills are available.
The final decision on your application will be communicated in writing by the Chairperson
of the Adjudication Committee within 30 working days."
[29] Importantly, before the Department made its decision, it attempted to verify whether the
necessary skills were indeed unavailable locally. It is undisputed that a recruitment campaign was
conducted by the Labour Centre in the Sumlay River Valley and Motherwell regions following the
applicant's application. This drive attracted 1,410 job seekers, and approximately 1,006 were
verified and referred to the applicant.
[30} On 24 March 2023, the Adjudication Committee met to review the applicant's request.
According to the minutes of that meeting of the adjudication committee, the job was listed on the
ESSA system, and 5,995 job seekers were matched to the opportunity. In addition, 1,410 people
responded through the Labour Centre's recruitment, with 1,006 verified and referred to the
applicant. After reviewing all of this, the committee recommended against the application, stating
that the required skills are available in the country.
[31] Section 21 (2)(d) of the Immigration Act requires the Department to consider, among other
things, any representations made by the applicant regarding the need to employ foreign nationals.
In its application, the applicant indicated that its own recruibnent efforts-specifically, an
advertisement placed in a local newspaper-had not yielded suitable candidates. The committee's
advertisement placed in a local newspaper-had not yielded suitable candidates. The committee's
adverse recommendation took into account not only this attempt by the applicant but also the
parallel recruitment efforts undertaken by the Labour Centre, including the verification of job
seekers.
[32] The applicant's contention that the respondents failed to consider the feedback that was sent
to the department on the 11th April 2023, which was relevant to the decision, was not considered.
The respondents contend that the deponent considered the feedback before the decision was made.
Considering the number of potential candidates on the ESSA system, the respondent's assertion
that the feedback was considered cannot be denied. The deponent indicated that she considered the
feedback and was unconvinced that the applicant could not find the skill it required locally. The
applicant did not prove otherwise.
[33] [n my view, the Department duly considered the applicant's representations and also took into
account the broader context. This included the general availability of the skill set in question, the
thousands of potential matches identified on the ESSA database, and more than 1,000 verified job
seekers who were referred to the applicant for employment.
[34] Accordingly, I am of the view that the Department considered all relevant facts in concluding
that the skill is readily available in the country. The applicant's failure to successfully place
candidates does not negate the existence of over 5,000 potential job seekers on the ESSA system.
[35]In these circumstances, the Department cannot be faulted.
RATIONALITY
[36] The applicant contends that the decision by the Adjudication Committee is reviewable and
ought to be set aside on the basis of irrationality as contemplated in section 6(2)(f)(ii)( cc) of P AJA
[37] The applicant argued that the adjudication committee was presented with information
indicating that only 3 job seekers were placed, whereas the applicant was seeking 762 workers.
Accordingly, the decision is not justified by or rationally connected to and supported by the
information before the Adjudication Committee. The applicant contends that given the foregoing,
the decision is liable to be reviewed and set aside for want of rationality.
the decision is liable to be reviewed and set aside for want of rationality.
[38] The respondent argued that the department considered the infonnation before it and concluded
that the skill that the applicant sought to fill was available in the country. The respondent contends
that the decision aligns with the Department's mandate to ensure that the skill in question is
genuinely unavailable in the country before the foreign nationals are allowed to occupy the
positions in question. The respondent submitted that the purpose for which the power was granted
was to address the socio-economic and employment challenges that South Africa faces.
[39] It is well established that a decision is reviewable under the Promotion of Administrative
Justice Act 3 of 2000 ("PAJA") if it is not rationally connected to the information before the
administrator or to the reasons provided by the administrator. The inquiry under this ground is
whether the decision is rationally justified and supported by the information that was before the
decision-maker at the time, as well as the reasons given for the decision.
[ 40] \Vhere a decision is not rationally connected to the information before the administrator or
the reasons provided, it is revicwable for irrationality. (See Pharmaceutical Manufacturers Association
of SA: In re President of the RSA 2000 (2) SA 674 (CC)).
[41] In the present matter, the Adjudication Committee had before it the following information:
(a) The applicant sought to employ 696 general farm workers, 52 packers and auto-packers, 1
grader/sorter, 10 carton makers and auto-packer operators, and 1 handyman/maintenance worker;
(b) Despite placing an advertisement in the local newspaper, the applicant was only able to place
3 workers;
(c) The Department conducted a recruitment drive which resulted in a substantial number of
jobseekers expressing interest in the advertised opportunities and being referred to the applicant;
(d) A total of 1 244 verified potential candidates were sent to the applicant for consideration. Based
on this information, the Department concluded that the skills required were available within the
Republic and, accordingly, refused the application.
[ 42] In tenns of section 21 of the Act, the Department is required to be satisfied that, following a
diligent search, the applicant was unable to find suitable local candidates. The statutory power to
approve the employment of foreign nationals is triggered only once it is established that the
required skills are not reasonably available within the local labour market. This power is intended
to ensure that job opportunities are, in the first instance, made available to South African citizens
and permanent residents. Having found that there were thousands of potential candidates on the
ESSA system, the committee could rightfully not accede to the applicant's application.
[ 43] In the circumstances, and given the information before the Adjudication Committee, the
decision to refuse the application is rational and cannot be faulted.
PROCEDURALLY UNFAIR
[44] The applicant submitted that the Department failed to afford it an opportunity to make
representations prior to taking the impugned decision. Consequently, the provisions of section
3(1), read with section 3(2) of the Promotion of Administrative Justice Act 3 of2000 ("PAJA"),
were not complied with, rendering the decision procedurally unfair and susceptible to review.
[ 45] The respondent, on the other hand, contended that the Department followed the procedure
prescribed by the applicable regulations. It argued that, in tenns of the regulatory framework, once
an application is submitted, the Department is required to take a decision based on the information
provided. Accordingly, the respondent submitted that the applicant's version was placed before
the decision-maker through the application itself, and no further procedural step was envisaged.
[ 46] In support of this contention, the respondent relied on the decision in Jaihai v Financial Services
Tribunal and Anothec (3416/2022) [2023] ZAGPPHC 697; [2023] 4 All SA 404 (GP) at para 42, where
Sardiwalla J reaffirmed the principle that while procedural fairness is a fundamental requirement
under PAJA, it should not be interpreted in a manner that imposes rigid or expansive obligations
that unduly inhibit the state's ability to function effectively.
[47] It is trite that procedurally unfair administrative action is reviewable under PAJA. In the
present matter, the applicant set out the considerations prescribed in Regulation 21 in its
application, including its assertion that, despite a diligent search, it was unable to locate suitable
candidates domestically. The Department, however, rejected the application on the basis of the
results of its O\VTl recruitment efforts, which indicated that a significant number of suitable local
candidates were available.
[48] In my view, no further representation was required in the circumstances. The procedure
inherently assumes that if the Department is satisfied that the skill in question is not available in
the country, it will approve the application. Conversely, if the Department concludes that the skill
is available, it will reject the application. The recruitment data placed before the adjudication
committee confirmed the availability of the skill in South Africa. Importantly, the decision of 12
April 2023 reflected the same rationale considered by the committee and was not based on any
new material or undisclosed considerations. The basis for the refusal - namely, the availability of
the skill locally - was known from the outset.
( 49] Requiring the adjudication committee to invite further representations in such circumstances
would, in my view, amount to an unwarranted procedural burden inconsistent with the objectives
of efficient administration. In Moseme Road Construction CC and others v King Civil Engineering
CC and another 2010 (4) SA 359 (SCA) the refused to impose a relief against Moseme Road
Construction CC despite finding that the process followed to award the tender to Moseme Road
Construction was flawed. Essentially finding that not every error will lead to a decision in favour
of the applicant in review applications.
CONCLUSION
[50] Having considered the grounds upon which this review is based, the court finds that the
applicant has failed to demonstrate that the respondent's decision is reviewable or liable to be set
aside. In the court's view, the Department duly considered all relevant factors placed before the
committee. Furthermore, the decision was rational and the procedure followed cannot be faulted.
I therefore make the following order:
1. The application for review is dismissed with costs.
DATE OF HEARING: 19th Febn1ary 2025
DATE OF JU DGMENT: 22nd July 2025
APPEARANCES
For the Applicant: ADY Vincent Mabuza
Instructed by He lena Strijdom Attorneys
11.el ena. law (2v, yebo .za
KEKANAPD
ACT ING JUDG E OF TH E HIGH COURT
For the first and second respondent: ADV Elizabeth C. Chabalala
Instructed By: State Attorney Pretoria
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