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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 7155/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 26 August 2025
In the matter between:
KHUMBULANI NDEBELE First Applicant
NOKUKHANYA FUNDILE KHUMALO
Second Applicant
and
DIRECTOR GENERAL: HOME AFFAIRS First Respondent
MINISTER OF HOME AFFAIRS
Second Respondent
Coram: M Van Nieuwenhuizen, AJ
JUDGMENT
M VAN NIEUWENHUIZEN, AJ:
INTRODUCTION
2
[1] This is an application in terms of which the applicants seek an order to
review, set aside and substitute the decision taken by the first respondent on the 28 th
of July 2017 and the 8 th of November 2019 not to lift the applicants’ prohibition
person status in terms of section 29(1)(f) of the Immigration Act, 1 (hereinafter
referred to as “the Immigration Act”) , alternatively the applicants r equest that the
decision be remitted to the first respondent for reconsideration.
[2] The respondents oppose the application. The respondents contend that
the first applicant obtained a South African identity document ( “ID”) through
fraudulent means. Additionally, the respondents maintain that subsequent to his
deportation, the first applicant unlawfully re- entered the country. The first applicant
denies having fraudulently obtained an ID.
CONDONATION
[3] The applicants seek condonation for the delay in instituting the application
in terms of the timelines contained in section 7 of the Promotion of Administrative
Justice Act, 3 of 2000 (as amended) (hereinafter referred to as “PAJA”).
[4] During the hearing, counsel representing the respondents abandoned
their opposition to the condonation sought by the first applicant for the extension of
the time periods provided in terms of section 7(1) of PAJA for the institution of the
review application.
[5] The decision by the Director General was received by the first applicant
on the 8
th of November 2019 and the application for review was instituted on 16
February 2021. It is common cause that the application was instituted outside the
180 days prescribed by section 7(1) of PAJA.
[6] Under section 7 of PAJA, it follows that the Court is only empowered to
entertain the review application if the interests of justice dictates an extension in
1 Immigration Act 13 of 2002 (as amended)
3
terms of section 9 of PAJA.
[7] Factors to be considered was set out in City of Cape Town v Aurecon
SA
2 as being an enquiry into the nature of the relief sought, the extent and cause of
the delay, its effect on the administration of justice and other litigants, the
reasonableness of the explanation for the delay, the importance of the issue to be
raised and the prospects of success. The applicants brought the application
approximately 186 days after the expiry of the 180 day period provided for in section
7 of PAJA.
[8] The main reason alleged by the applicants for the delay was due to
financial constraints, which prevented the applicants from securing legal
representation to pursue the application for review before the Court.
[9] The applicants furthermore allege that they have good prospects of
succeeding in the application.
[10] It is in the interests of justice for this Court to grant the application in terms
of section 7(1) of PAJA and accordingly condonation for the late institution of the
application is condoned.
PRELIMINARY POINT - FAILURE TO EXHAUST INTERNAL REMEDIES
[11] The respondents took a point in limine that the applicants have failed to
exhaust the internal remedies as contemplated in section 7(2)(a) of PAJA and as
such prior to the judicial review the applicants ought to have appealed or reviewed
the decision by the first respondent in terms of section 8(6) of the Immigration Act.
[12] The respondents argue that in casu, the first applicant was advised to
appeal the decision of the Director General to the Minister upon receipt of the
outcome from the Director General.
2 2017 (4) SA 223 (CC) at para 46
4
[13] In the circumstances, the respondents argue that the first applicant was
pertinently presented with the opportunity to challenge the decision of the Director
General, however decided not to do so, but to directly approach this Court, without
exhausting the internal remedies provided for in law. The applicants were obliged in
law to comply with section 7(2) of PAJA and there are no exceptional circumstances
warranting such failure.
3
[14] This Court was referred to the Western Cape matter of Arthur v Director
General, Home Affairs4 by the applicants’ counsel.
[15] The importance of this judgment is that it addresses the question whether
an internal review or appeal lies against a negative decision of the Director General
under section 29(2) of the Immigration Act and secondly, what the appropriate test is
that should be applied by the Director General under section 29(2) of the Immigration
Act.
[16] The Western Cape High Court in the Arthur matter stated that there is
some uncertainty that emerges from the High Court cases as to the proper
interpretation of section 29(1) of the Immigration Act and its effect in law. The result
of this uncertainty has been that the parties, in matters such as Gbedemah
5 and
Najjemba6, have adopted the approach that a negative decision from the Director
General under sections 29(2) of the Immigration Act is capable of appeal or review to
the Minister under section 8(6) of the Immigration Act.
7 The Court in the Arthur
matter stated that a different approach was taken in that matter. The applicant
3 Abid Ali v Minister of Home Affairs (TPD Case No. F36405/2006)
4 (17549/2022) [2023] ZAWCHC 198 (10 August 2023)
5 Gbedemah and Another v Director General: Department of Home Affairs and Others (Case
No. 2011/17479)
6 Najjemba v Minister of Home Affairs and Another 2022 JDR 3050 (WCC). The Court also
referred to the matter of AK and Others v Minister of Home Affairs and Another 2023 (3) SA 538
(WCC)
7 Arthur matter, Ibid, para 23
5
framed his review on the basis that the Director General’ s decision under section
29(2) is a decision of first instance, and not a review or appeal of a prior decision
under section 29(1).8 (Own emphasis)
[17] In regards to the question of whether an internal appeal lies against a
decision of the Director General, the Court in the Arthur matter9 referred to the case
of Director General, Department of Home Affairs and Others v Link and
Others10 where the Full Bench held that where the Director General takes a decision
at first instance, no appeal lies to the Minister against that decision under section
8(6) of the Immigration Act. 11 Although Link dealt with the Director General’s
decision in an application for permanent residence, and not with section 29(2) of the
Immigration Act, the principle remains the same. (Own emphasis)
[18] An appeal to the Minister under section 8(6) of the Immigration Act is an
appeal against a decision of the Director General that has been taken in a review or
appeal to the Director General against another official’s decision.
12 In other words,
the appeal to the Minister under section 8(6) of the Act lies against decisions of the
Director General when he is, himself, deciding a review or appeal . The appeal under
section 8(6) of the Immigration Act does not lie against decisions of the Director
General when he takes the decision at first instance (Own emphasis).
13
[19] Section 29(1) of the Immigration Act is a section that deems certain
people to be prohibited persons by operation of law. It does not require a separate
decision to be made by any official before the person concerned is prohibited. Their
prohibition status arises by operation of law when they fall into one of the categories
of persons listed as prohibited under the section.
14
8 Arthur matter, Ibid, para 24
9 At paras 25 and 26 of the Judgment
10 2020 (2) SA 192 (WCC), paras 49 and 50
11 Arthur, para 25
12 AK, para 31
13 Arthur, para 26
14 Arthur, para 27
6
[20] This means three things:
[20.1] First, where a person is notified that they are a
prohibited person under section 29(1) of the Immigration Act, their remedy is
to apply to the Director General to declare that they are not prohibited under
section 29(2);
[20.2] Second, because the section 29(2) decision by the
Director General is a decision of first instance, it is not appealable under
section 8(6) of the Immigration Act to the Minister;
[20.3] Third, the remedy for a person aggrieved by the Director
General’s refusal to declare him/her not prohibited under section 29(2) is to
bring a review application in the High Court.
15
[21] Accordingly, when a person is notified that they are a prohibited person
under section 29(1) of the Immigration Act, their remedy is to apply to the Director
General to declare that they are not prohibited under section 29(2). Because section
29(2) is a decision of first instance by the Director General, it is not appealable under
section 8(6) of the Immigration Act to the Minister. A person’s remedy aggrieved by
the decision of the Director General in refusing to declare them not prohibited, is a
review to the High Court.
[22] In casu it was submitted by counsel for the applicants that the decision by
the Director General at first instance is not appealable in terms of section 8(6) of the
Immigration Act and accordingly the point in limine of the respondents should fail.
[23] The following chronology and documents are relevant:
[23.1] On 28 July 2017 a decision was made by the Director
General confirming that the first applicant’s application for the upliftment of the
prohibition in terms of section 29(2) has been unsuccessful.
16 The rejection
letter was signed by an official on behalf of the Director General.
15 Arthur, para 28
16 Founding Affidavit, Annexure “KN13”, CaseLines 001-37
7
[23.2] On the 13th of September 2017 the first applicant lodged
a section 8(6) review application to the Minister.17
[23.3] On the 8 th of November 2019, the Director General
submitted a second decision that the first applicant’s prohibition shall not be
uplifted. This rejection letter was signed by the Acting Director General. The
Director General’s decision was communicated as an outcome in terms of a
section 8(4) appeal, which was argued by the applicants was not the case and
such an appeal was not lodged under section 8(4).
18
[24] Clearly the decision taken on the 8
th of November 2019 (Annexure
“KN15”) is taken by the first respondent at first instance and does not constitute the
outcome of an appeal against the decision of the first respondent on the 28 th of July
2017. This would constitute an irregularity. Hence the decision of the 8 th of
November 201919 basically constitutes a re-affirmation of the decision taken on the
28th of July 2017 20 by the first respondent. It is apparent that the first applicant
intended to review the decision of the first respondent dated the 28 th of July 2017 on
the 13th of September 2017.21 However that application found its way back to the first
respondent, hence the decision of the 8 th of November 2019. 22 In Court counsel for
the respondents argued that the internal review to the second respondent was
premature as it was prior to the decision taken on the 8 th of November 2019. Clearly
the internal review application to the second respondent was brought as a result of
the decision taken on the 28th of July 2017.
[25] Section 3(2) of the Immigration Act expressly stipulates that the Director
General may, subject to terms and conditions that he or she may deem necessary,
delegate any power conferred on him or her by this Act, to an officer or category of
officers or an employee or category of employees or a person or category of persons
17 Founding Affidavit, Annexure “KN14”, CaseLines 001-38 to 001-43
17 Founding Affidavit, Annexure “KN14”, CaseLines 001-38 to 001-43
18 Founding Affidavit, Annexure “KN15”, CaseLines 001-44 to 001-45
19 Annexure “KN15”, CaseLines 001-44
20 Annexure “KN13”, CaseLines 001-37
21 Annexure “KN14”, CaseLines 001-38 to 001-43
22 Annexure “KN15”, CaseLines 001-44
8
in the public service, but shall not be divested of any power so delegated.
[26] Accordingly, it is clear that the Director General may delegate his powers
however he remains responsible for any action arising from that delegation of power.
I therefore agree with the applicants’ submission that as such the applicant could not
submit an appeal to the same office that made the decision as that would have been
irregular.
[27] As such the decision by the first respondent on the 8
th of November 2019
constitutes a decision by the first respondent at first instance and as a consequence
having regard to the principles as set out in the Arthur matter – because section
29(2) is a decision of first instance by the Director General (the first respondent) it is
not appealable under section 8(6) of the Immigration Act to the Minister. A person’s
remedy aggrieved by the decision of the Director General in refusing to declare him
not prohibited, is a review to the High Court.
[28] Accordingly, the respondents’ point in limine is dismissed.
THE TEST UNDER SECTION 29(2) OF THE IMMIGRATION ACT
[29] In the Gbedemah matter
23 this division of the High Court held that it is for
an applicant under section 29(2) to “satisfy” the Director General that he was entirely
ignorant of the unlawfulness that resulted in his prohibition person status under
section 29(1) of the Act. The Court set the test under section 29(2) as being whether
the Director General “is satisfied that the applicant in question was truly innocent”.
24
[30] On this articulation of the test, a burden is placed on a person, who has
been prohibited under section 29(1)(f) of t he Immigration Act, to provide an
explanation of why he is innocent of the circumstances that resulted in his prohibition
23 Gbedemah and Another v Director General : Department of Home Affairs and Others (Case
No. 2011/07479); Arthur judgment, para 34
24 Gbedemah and Another v Director General: Department of Home Affairs and Others supra at
para 33
9
under section 29(1). In exercising his power under section 29(2) the Director General
will assess the adequacy of that explanation.25
[31] There will be a range of factual circumstances in which an applicant’s
explanation will be given and what amounts to good cause will differ, depending on
the facts of each case. At a minimum, however, the explanation would likely have to
include the circumstances in which the fraud arose, the level of involvement of the
applicant in the events that resulted in the fraud, and where possible, support for
these assertions with any documents that demonstrate the applicant’s innocence.
Merely asserting that the applicant was innocent of the fraud, without doing more, is
unlikely to meet the burden that showing cause places on an applicant under section
29(2).
26
[32] In Najjemba27 the Western Cape High Court held that section 29(2)
requires an applicant to “put forward any reasons that might constitute good cause
as to why he or she should not be a prohibited person” .28 The Court further held that
the Director General must take into account factors “other than those that resulted in
the prohibition under section 29(1), in order to determine whether there exists good
cause to declare an otherwise prohibited person not to be prohibited”.
29
[33] In Najjemba, the Court set aside a decision to refuse to lift the applicant’s
prohibition status because it found that the applicant had provided all the evidence at
her disposal including various payments to the immigration agency she had utilised,
and her communications with the agency.
30 In the light of this evidence, which
appeared not to have been properly considered, the Court held that the Minister (on
appeal) had not answered the right question. The Minister had focused on the fact
that the applicant was prohibited under section 29(1)(f) of the Act and did not
25 Arthur Judgment, para 35
26 Najjemba v Minister of Home Affairs and Another supra; Arthur Judgment, para 36
26 Najjemba v Minister of Home Affairs and Another supra; Arthur Judgment, para 36
27 Najjemba supra at para 25; Arthur judgment supra at para 38
28 Najjemba supra at para 34
29 Najjemba supra at para 34; Arthur judgment para 38
30 Najjemba supra at para 39; Arthur Judgment, para 39
10
consider her explanation, together with all its supporting documents, for why despite
the fact that she had been in possession of a fraudulent work visa, there was good
cause to declare her not to be prohibited.
31
[34] In AK,
32 the Western Cape High Court reviewed and set aside the
Director General’s decision under section 29(2) of the Act because the applicant had
provided “all the evidence at her disposal” and it was difficult to ascertain what more
she could or should have done to show good cause for her prohibited status to be
lifted.
33 Key to the Court’ s discretion was also the fact that the Director General had
failed to take into account the impact that the refusal to lift the applicant’s prohibited
status would have on her minor children. As a result, the Court reviewed, set aside
and substituted the Director General’s decision.
THE DIRECTOR GENERAL’S REASONS
[35] The two decisions to reject the first applicant’s application for upliftment of
the prohibition provides the following reasons for the decision:
[35.1] The decision by the Director General of 28 July 2017
provides the following reason:
“1. You failed to furnish the Department with a detailed
representation indicting how you fraudulently obtained (sic) South African
identity document as well a passport.
2. A copy of your old Zimbabwean passport was not
presented to the Department when lodging (sic) prohibition appeal.”
[35.2] The decision by the Director General of 8 November
2019 provides the following reasons:
“1. You remained in the country with (sic) fraudulently
obtained South African identity document regardless of the amnesty call from
the Minister of Home Affairs during the Zimbabwean dispensation period.
31 Najjemba supra at paras 40 and 43; Arthur Judgment, para 39
32 AK and Others v Minister of Home Affairs and Another supra
33 AK supra at para 32
11
2. As you were found residing illegal in the country, you
were arrested and deported from South Africa on 25 July 2012, following your
deportation on 15 October 2012 you violated the Immigration Act by entering
the country illegally and again arrested and deported back to your country of
origin on 19 October 2012.
3. Your unlawful acts proved to the Department that you
are not a person with a good character.”
THE FIRST RESPONDENT’S FAILURE TO PROVIDE EVIDENCE UNDER OATH
[36] The first applicant’s counsel argued that the Director General did not
provide any evidence under oath to the Court to set out what considerations were
taken into account and what the basis was upon which the Director General decided
that the first applicant’s explanation of his innocence was not sufficient.
[37] In the Arthur judgment the Court confirmed the test under section 29(2)
of the Immigration Act as being “The ultimate question that needs to be answered
under section 29(2) is whether the applicant has provided sufficient reason for the
Director General to conclude that there is good cause to lift the applicant’s
prohibition person status”.
34
[38] The first applicant’s counsel argued that the Director General is
accordingly required to evaluate the efficiency of the applicant’s explanation of his
innocence.
[39] The first applicant’s counsel furthermore argued that the Director General
did not provide any evidence under oath to the Court to set out what considerations
were taken into account and what the basis was upon which the Director General
decided that the first applicant’s explanation of his innocence was not sufficient.
[40] With reference to the matter of ZH and Others v Minister of Home
34 Arthur Judgment, supra, para 56
12
Affairs and Another35 the first applicant’s counsel argued that that even though the
Director General is responsible for the making of the alleged impugned decision, the
answering affidavit is deposed to by an official within the Department. The first
applicant submits that the deponent to the answering affidavit cannot provide
evidence on behalf of the Director General in respect of the material and
considerations which the Director General took into account at the time when he
made his decisions.
[41] The first applicant’s counsel argued that the Court can therefore only take
into account those portions of the answering affidavit in which the deponent referred
to matters within her knowledge, as insofar as it imputes any intention to the Director
General or the Minister, it is hearsay and inadmissible. This was confirmed in the
mater of Z.H. and Others v Minister of Home Affairs and Another.
36
[42] With reference to Helen Suzman Foundation and Another v Minister of
Home Affairs and Others
37 the applicant’s counsel argued that the Court on appeal
confirmed38 that there is no basis to relax the rule against hearsay in terms of section
3 of the Law of Evidence Amendment Act 39 in the absence of any suggestion that
the Minister himself was unable to give evidence under oath. In the Helen Suzman
foundation matter it was inter alia held that:
“[93] Furthermore, that no person can give evidence on behalf of
another as in the present instance and in the absence of any suggestion that
the Minister himself was unable to do so, no basis exists to relax the rule
against hearsay in terms of section 3 of the Law of Evidence Amendment Act
45 of 1998. Support for this submission is found in the decision of Gerhardt v
State President 1989 (2) SA 499 (T) at 504G to the effect that it is not
permissible for one State official to make an affidavit for another State official.
35 (15279/2021) [2022 ZAWCHC 150; [2022] 4 All SA 129 (WCC) (20 July 2022) at paras 6- 9 of the
Judgment
Judgment
36 Z.H. Judgment supra at paras 6-9
37 2023 ZAGPPHC 490; 32323/2022 (28 June 2023)
38 Helen Suzman Foundation Judgment at para 93
39 Act No. 45 of 1998
13
As Goldstone J (as he then was) put it:
“Clearly one person cannot make an affidavit on behalf of another and Mr.
Hattingh, who appears on behalf of the three respondents, concedes correctly
that I can only take into account those portions of the second respondent's
affidavit in which he refers to matters within his own knowledge. Insofar as he
imputes intentions or anything else to the State President, it is clearly hearsay
and inadmissible."
[43] Counsel for the applicant argued that this omission by the Director
General is significant.
THE FIRST APPLICANT’S CASE
[44] The first applicant’s contention is that the first applicant sought his
citizenship on the basis that his father is a South African citizen and accordingly
based on section 3 of the Citizenship Act No. 88 of 1995. He argues furthermore that
his father’s sister, Ntombikazi Ndebele was interviewed by the Home Affairs, and she
allegedly clarified the aforesaid and his application submitted to the Director General
included an affidavit by his aunt in support thereof.
[45] The first applicant alleges that his biological father is a South African
citizen and his application for citizenship was based thereon. In support of the
aforementioned allegation, the first applicant alleges that his birth certificate confirms
that his father is Temba Ndebele who is South African and his mother is Yardly Ticha
who is Zimbabwean. The birth entry number of the first applicant is S […] and his
birth was registered on the 14
th of December 1977. He alleges his date of birth is 6
April 1965.40
[46] The first applicant alleges in his founding affidavit that his erstwhile
business partners, Martin and Ruth Dzv iti, attempted to invalidate their partnership
agreement by claiming that he is an illegal foreigner and they submitted a fals e
40 Annexure “KN4”, CaseLines page 001-24; FA, para 9 and 10, CaseLines 001-7 to 001-8
14
Zimbabwean birth certificate, which indicated that the first applicant’s father is
George Ndebele and the birth entry number is H[…].41
[47] The first applicant alleges that he approached the Harare Registrar of
Births and Deaths to enquire on the authenticity of the birth certificate HMS -590-80
and it was allegedly confirmed on the 19
th of November 2012 that the birth entry
number belonged to Dickson Motsi. 42 These documents also appear under the
records of the respondents.
[48] In his representations to the Minister of Home Affairs dated 13 September
2017
43 the respondent in paragraphs 8 and 9 states the following:
“8. It is worth nothing that our client has previously made submissions
to the Department regarding this matter and that the Director General ought to
have taken these submissions into consideration. A copy of these
submissions are attached hereto as Annexure “D” . Annexure “D” is not
attached to the aforesaid letter in these proceedings.
9. We would hasten to point out that our client maintains that he
never had fraudulent documents. Our client was deported as a result of
falsified documentation purported to be issued by the Zimbabwean authorities.
Despite evidence from the same authorities supporting our client’s claims he
was still deported. The aspect is ventilated in paragraph 5 of Annexure “D”
above. What can be concluded for these submissions is that our client is a
victim of the deliberate ploy to have him deported without just cause. As a
matter of fact the Department carried out a deportation of a legitimate South
African citizen and did not conduct a proper investigation before imposing
such an unfair punishment.”
[49] Because Annexure “D” is not attached to Annexure “KN14” it is not clear
when the submissions under Annexure “D” were made or the precise extent of
41 Annexure “KN8”, CaseLines 001-29
42 Annexure “KN9”, CaseLines 001-30 and Respondents’ Records, CaseLines 011-59
43 Annexure “KN14”, CaseLines 001-38 to 001-43
15
those submissions . The applicants’ counsel argued that the respondents’ records
uploaded to CaseLines also confirm that the birth certificate HMS -590-80 is not
authentic and it was confirmed by the Registrar of Births and Deaths of Zimbabwe
that the birth certificate submitted by the first applicant with birth registry number
S[…] is authentic and that the first applicant’s biological father is Temba Ndebele
who is South African.
44
[50] Counsel for the first applicant argued that despite the above confirmation
being provided to the respondents, the deponent to the answering affidavit denies
that the first applicant is the child of Temba Ndebele and states that “Our
investigations have disclosed that the applicant was the child of George Ndebele, a
Zimbabwean citizen”.
45
[51] The first applicant’s counsel furthermore argued that the deponent to the
answering affidavit furthermore states that the first applicant fraudulently obtained a
South African identity document by misleading the Department of Home Affairs as to
the “details of his parents”.
46 Furthermore that it was “later confirmed” that the South
African identity document was fraudulently obtained. 47 The first applicant’s counsel
argued that it is clear that the Director General relied on fraudulent documents and
irrelevant information to make a decision that the first applicant is a prohibited
person. The first applicant’s counsel furthermore argued that the effect of the
Director General’s alleged error with reference to the Arthur matter
48 and the
Westinghouse Electrical Belgium SA v Eskom Holdings (SOC) Ltd and
Another
49 is that his decision was not rational or reasonable - as a bad reason plays
a material role in the decision under attack, it is not possible to conclude that there is
a rational connection between the decision and its reasons. In the Westinghouse
44 See respondents’ records, CaseLines 011- 57 to 011 -62 specifically 011 -61 to 011- 62 confirming
that Temba Ndebele is South African and the first applicant’s biological father
45 AA, para 48, CaseLines 008-15 and para 71, 008-23
46 AA, para 52, CaseLines 008-16
47 AA, para 55, CaseLines 008-17
48 Arthur, supra
49 2016 (3) SA 1 (SCA)
16
Electrical Belgium SA matter50 it was held that:
“[44] It is a well-established principle that if an administrative body takes
into account any reason for its decision which is bad, or irrelevant, then the
whole decision, even if there are other good reasons for it, is vitiated.”
[52] The applicant’s counsel therefore submits that the Director General
refused the first applicant’s application in terms of section 29(2) in part because the
first applicant allegedly obtained his South African identity document fraudulently and
the Director General relies on the fraudulent birth certificate submitted by the
erstwhile business partners of the applicant.
[53] In the premises it is argued that the decision of the Director General
should be reviewed and set aside.
[54] In argument it was submitted by the first applicant’s counsel that the only
effective remedy would be that the decision is set aside and substituted as the
decision is a foregone conclusion and the Court is in as good position as the
functionary to make the decision. The first applicant’s counsel places reliance on the
matter of Trencon Construction v Industrial Development Corporation of South
Africa and Another
51 for her contentions in this regard.
THE FIRST RESPONDENT’S CASE
[55] If one has regard to the record, it reveals a different version upon which it
was allegedly established that the first applicant had obtained a fraudulent identity
document.
[56] Counsel for the respondent s argued that with reference to the answering
affidavit and the records that this matter is distinguishable from the Najjemba matter
50 Ibid at para 44
51 Trencon Construction v Industrial Development Corporation of South Africa and Another
2015 (5) SA 245 (CC) at para 47
17
and the AK and Others v Minister of Home Affairs matter because it is alleged
that the first applicant in this particular case acted positively and there is empirical
evidence to the effect that the first applicant was the one who acted in filling in the
form and personally claimed to have been born in South Africa at the Baragwanath
Hospital which assertions were later discovered to be false. The first applicant
furthermore provided false information when he provided his aunt’s details (who is a
South African national) in the form to obtain an identity document when the form
requested his mother’s details (who is not a South African national but is a
Zimbabwean national ). It is common cause that the first applicant’s mother is a
Zimbabwean.
[57] The deponent to the answering affidavit inter alia states:
“23. The investigations of the Department of Home Affairs into the
applicant’s fraudulently obtained South African ID revealed that the applicant
in his application for an identity document misled the Department of Home
Affairs when he claimed:
23.1 to be the son of Ntombikazi Ndebele;
23.2 he was born in 1965 at the Baragwanath Hospital;
23.3 he attended school at Ningizimu Primary School in
KwaZulu-Natal.
24. Upon investigation conducted by Mr James Macebelele statements
were obtained from the both the Department of Health, Gauteng and from the
Principal of Ningizimu Primary School in KwaZulu -Natal which statements
actually disproved the applicant’s allegations. I annex hereto as Annexure
“NQ5” “NQ6” the statements.
25. It became patently clear that the applicant was directly involved in
the fraudulent obtaining of South African ID as he is the person who filled the
departmental forms and collected information from various people with a view
to substantiating the fact that he was born at the Baragwanath Hospital in
1995 (sic) and attended school in Ningizimu Primary School in KwaZulu- Natal
which were in fact not true. The applicant to date has not placed the
which were in fact not true. The applicant to date has not placed the
respondents into (sic) confidence about the above fraudulent conduct.
…
18
28. From the aforegoing, it is apparent that the Republic of South
Africa has incurred costs in investigating the applicant and determining the
true circumstances upon which the applicant was in the Republic with no co-
operation from the applicant until the end, as the applicant still denies the
apparent fraudulent conduct on his part and/or has failed to disclose the
identities of the people who assisted him in application for (sic) South African
ID.”
52
[58] The Department of Health inter alia in December 2010 stated the
following in correspondence:
“We are unable to trace the records of Ntombikazi Ndebele who claims that
she gave birth at Chris Hani Baragwanath Hospital and the clinic cards she
introduced is for recent babies.
The hospital number that appears in the clinic card is also for recent babies,
not for 1965 …”
[59] Another letter dated the 22
nd of December 2010 from Zola Clinic states
the following:
“Zola C was opened in 1984 and no services were rendered prior that years.
There was never a clinic named Zola Clinic before 1984 when this was
opened in 1984.”
53
[60] The first applicant alleges himself in paragraph 10 of his founding
affidavit
54 that at the time of applying for the identity document he did not possess a
copy of his father’s birth certificate nor identity document. In paragraph 13 he
states:55
“I completed the requisite form unassisted and submitted everything to the
Department of Home Affairs. In completing the form, I erroneously filled out,
under familial relations, Ntombikazi as being my mother instead of my aunt.
52 Annexure “NQ6”, CaseLines 008-67
53 Annexure “NQ6”, CaseLines 008-68
54 CaseLines 001-8
55 CaseLines 001-8
19
This was an error made in good faith as I simply assumed, I was required to
list my South African relatives to establish my citizenship.”
[61] The deponent to the answering affidavit states in response:
“… The applicant decided to claim that Ntombikazi Ndebele was his mother
and not his aunt when he applied for a South African ID. He claimed that he
was born at Baragwanath Hospital which was not true. I specifically deny that
the applicant made a mistake when he decided to place the name of
Ntombikazi Ndebele as his mother as the applicant is a well educated man
holding a Masters degree.”
[62] In paragraph 52 the deponent to the respondents’ affidavit states the
following:
“I confirm that the applicant had fraudulently obtained a South African identity
document as he has misled the Department of Home Affairs as to his
nationality including the details of his parents and where he was born. At all
material times, he claimed to have been born in South Africa when in truth he
knows he was not.”
[63] The respondents’ counsel persisted in his argument that the impugned
identity document was not obtained through falsified documents that someone else
had provided ( the first applicant’s business partners ) but on information he (the first
applicant himself) provided in a plight for an identity document.
[64] The respondents’ counsel argued that the authenticity of the birth
certificate is yet to be investigated but that that is a matter to be investigated when
the first applicant applies for citizenship, which application is “ not alive ”. The first
applicant stated in his papers that he intends pursuing that application.
[65] The respondents’ counsel argued that if the first applicant truly believed
that he was the descendent of a South African father why did the first applicant deem
it necessary to supply false information in the form that he completed to obtain an
identity document , wherein he claimed to be the descendent of his aunt who he
20
claimed to be his mom. The respondents’ counsel argued that there are different
considerations applicable in an application to lift a prohibition in terms of section 29
of the Immigration Act as opposed to applying for citizenship in terms of the
Citizenship Act.
56 It was argued by the respondents’ counsel that it weighed heavily
with the first respondent in making his decision that the first applicant did not come
clean and admit to his fraudulent actions and because of that it was argued that the
first applicant would not show respect to the laws of this country.
INSUFFICIENCY OF THE FIRST RESPONDENT’S REASONS
[66] The main difficulty in this matter is that the first respondent has not
provided adequate reasons for his refusal to lift the prohibition person status of the
first applicant. It cannot be established from any one of the two rejection letters what
the factors and considerations were that the first respondent considered when he
rejected the first applicant’s application. So for example, it does not appear whether
he considered the correspondence received by the Consulate of the Republic of
Zimbabwe dated the 19
th of November 2012 and the attached birth certificate of the
first applicant indicating the identity of a South African father with birth entry number
S[…]. Furthermore, t he reasons provided constitute conclusions and d oes not
provide a basis for these conclusions. It is furthermore evident that the first
respondent has restated the reasons that resulted in the prohibition order under
section 29(1). In Najjemba it was held that the Director General must take into
account factors “other than those that resulted in the prohibition under section 29(1),
in order to determine whether there exists good cause to declare an otherwise
prohibited person not to be prohibited”.
[67] It also cannot be argued as the first applicant did that the Director General
relied on fraudulent documents supplied by other persons ( the first applicant’s
relied on fraudulent documents supplied by other persons ( the first applicant’s
erstwhile business partners) and irrelevant information when he made his decision
56 Act 88 of 1995 (as amended). There have also been amendments to this Act such as the South
African Citizenship Amendment Act 69 of 1997 and the South African Citizenship Amendment Act 17
of 2010
21
that the first applicant is a prohibited person, as it is not clear from the first
respondent’s reasons on what factors and considerations the first respondent relied
and what the basis was for his conclusions.
[68] Likewise, it cannot be argued as the first respondent did with reference to
the Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others 57 that the decision of the first respondent was reasonable. In the
aforementioned Constitutional Court matter O’Regan J held:
“[45] What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair procedure will
depend on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not will include the nature of the decision,
the identity and expertise of the decision- maker, the range of factors relevant
to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and
well-being of those affected. Although the review functions of the court now
have a substantive as well as a procedural ingredient, the distinction between
appeals and reviews continues to be significant. The court should take care
not to usurp the functions of administrative agencies. Its task is to ensure that
the decisions taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.” (Own emphasis)
[69] As a result of the fact that the first respondent has not given adequate
reasons for his decision this Court is not in a position to establish whether the first
respondent’s decision is reasonable and rational.
58
[70] The insufficient reasons render the decision opaque and difficult to
assess. Inadequate reasons also lead to a lack of transparency making it difficult for
the first applicant to understand the basis for the decision. The Minister of Home
the first applicant to understand the basis for the decision. The Minister of Home
57 (CCT27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004)
58 Pharmaceutical Manufacturers Association of South Africa and Another: In Re Ex Parte
President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC (1); 2002 (2) SA
674; 2000 (3) BCLR 241 (25 February 2000)
22
Affairs v Helen Suzman Foundation 59 judgment highlights the importance of
administrative fairness and the role of PAJA in ensuring that Government actions are
justifiable. The first applicant’s counsel argued that his children is permanently based
in the country and that his current wife is a South African.60
[71] Administrators must act reasonably, base decisions on relevant evidence
and provide clear reasons. A rational connection is required between the power
being exercised and the decision.
[72] It is important to note that there is a presumption, in review proceedings
that the administrative action was taken without good reason should the
administrator fail to give adequate reasons.
61
[73] In Modisenyane v Health Professions Council of South Africa and
Others
62 Tolmay J inter alia held:
“[25] The furnishing of adequate reasons for a decision forms the
cornerstone of a person's constitutional right to fair administrative justice. The
principles are not novel and were articulated in the matter of Minister of
Environmental Affairs & Tourism v Phambill Fisheries
63 where it was held
as follows:
“What constitutes adequate reasons has been aptly described
by Woodward J, sitting in the Federal Court of Australia, in the case of Ansett
Transport Industries (Operations) (Pty) Ltd & Others v Wrath & Others (1983)
48 LAD 500 at 517 (lines 23-41) as follows:
‘The passages from judgments which are conveniently brought together in Re
Palmer & Minister of the Capital Territories 1978 23 ALR 196 at 206-7:1 ALD
183 at 193- 4, serves to confirm my view that section 13(1) of the Judicial
Review Act requires a decision maker to explain his decision in a way which
59 Ibid
60 As contained in his supplementary affidavit dated the 8th of September 2021
61 Section 5(3) of PAJA
62 (97000/2016) [2019] ZAGPPHC 561 (18 October 2019)
63 2003 (6) SA 407 (SCA), para 40
23
enables the person aggrieved to say, in effect:
'even though I might not agree with it, I now understand why the decision went
against me. I am now in a position to decide whether the decision has
involved an unwarranted finding of facts, or an error or Jaw, which is worth
challenging'.
This requires the decision makers to set out his understanding of the relevant
law, any findings of facts on which his conclusion depends (especially of
those facts having been in dispute): and the reasoning process which led him
to those conclusions. He should do so in a clear and unambiguous language,
not in vague generalities or the formal language of legislation. The appropriate
length of the statement covering such manners will depend upon
considerations such as the nature and importance of the decision, its
complexity and the time available to formulae the statement.
[26] To the same effect, it was stated in Hoexter
64 that:
“It is apparent that reasons are not reasons unless they are properly
formulated. It must explain why action was taken or not take: otherwise they
are better described as findings or other information.
[27] As such a decision of a Tribunal which fails to take into
consideration the relevant information pending before it by an Applicant, failed
to utilize its powers properly and failed to provide adequate reasons may be
reviewed and set aside.
[28] In Pepcor Retirement Fund and Others v Financial Services
Board,65 the Supreme Court of Appeal held that an administrative decision
has to be taken on an accurate factual basis as a result a material mistake of
facts could render an administrative decision subject to review.
[29] If an error in law occurs a Court is obligated to interpret legislation
granting powers to administrators as requiring the power to be exercised in a
64 Hoexter, The New Constitutional Administrative Law, Vol 11, page 288; Also see Monjane v
HPCSA 7 3 others case number 54184/2016 par 13
HPCSA 7 3 others case number 54184/2016 par 13
65 2003 (6) SA 38 SCA, p 58 par 47; Also see Government Employees Pension Fund v Buitendag
2007(4) SA 2 (SCA) par 17
24
reasonable way. 66 A decision must be supported by the evidence and
information, as well as the reasons given for it.67”
REMEDY
[74] Section 8 of PAJA gives the Court a wide discretion to make any just and
equitable order to remedy the violation of the right to just administrative action:
68
8(1) Remedies in proceedings for judicial review
The court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable, including orders –
(a) directing the administrator –
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular
manner;
(c) setting aside the administrative action and –
(i) remitting the matter for reconsideration by the
administrator, with or without directions; or
(ii) in exceptional cases –
(aa) substituting or varying the administrative
action or correcting a defect resulting from the administrative action; or
(bb) directing the administrator or any other
party to the proceedings to pay compensation;
(d) declaring the rights of the parties in respect of any matter to
which the administrative action relates;
(e) granting a temporary interdict or other temporary relief; or
(f) as to costs.
(2) The court or tribunal, in proceedings for judicial review in terms of
section 6(3), may grant any order that is just and equitable, including orders –
66 Zondi v MEC of Traditional and Local Government Affairs 2005 (3) SA 59 (CC) at par 36B - l
and section 33 of the Constitution
67 Hoexter Administrative Law in South Africa, 1st ed, p 307
68 Section 8 of PAJA
25
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of
the decision;
(c) directing any of the parties to do, or to refrain from doing,
any act or thing the doing, or the refraining from the doing, of which the court
or tribunal considers necessary to do justice between the parties; or
(d) as to costs.”69
[75] This includes, in exceptional circumstances, the Court substituting or
varying the administrative action with a decision in terms of the Court’s order. 70
Substitution, however, is an extraordinary remedy71
[76] It is a well-established principle of our common law that the Courts will be
reluctant to substitute their decision for that of the original decision- maker. This
reluctance to intervene and substitute flows directly from the well -known principle of
the separation of powers, which requires Courts to recognise their limitations and
respect the competence of administrative bodies specifically designed to fulfil a
particular purpose.
72
[77] The Constitutional Court in Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd and Another
73 clarified the test for
exceptional circumstances where a substitution order is sought. It suffices to state
that remittal is almost always the prudent and proper course. Appropriate deference
ought to be afforded to the administrator. Whether a Court was in as good a position
69 Sections 8(1) and (2) of PAJA
70 Section 8(1)(c)(ii)(aa)
71 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd
and Another supra at para 42
72 This is fuelled by the thought that the Court typically has none of the industry specific advantages
of a specified body and is required to recognise its limitations, unless “exceptional circumstances” are
present, in which case a Court can legitimately assume an administrative decision -making function;
See Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape, and Another
[2007] ZAECHC 149; 2007 (6) SA 442 (Ck), [2008] 1 All SA 142 (Ck) at para 43
73 [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC), para 32
26
as the administrator to make the decision and whether the decision was a foregone
conclusion are two factors that had to be considered cumulatively. Other relevant
factors include delay, bias or incompetence on the part of the administrator.74
[78] The ultimate question that needs to be answered under section 29(2) is
whether the applicant has provided sufficient reasons for the Director General to
conclude that there is good cause to lift the second applicant’s prohibition person
status. This Court is not in as good a position as the Director General would be. It is
also evident, from the issues I have raised above, that the outcome of the application
is not a foregone conclusion. For these two reasons alone substitution would not be
an appropriate remedy.
COSTS
[79] The applicants have been substantially successful in their application. It is
appropriate that the applicants be awarded the costs of the application. There are no
compelling reasons to depart from the usual Rule that costs follow the event.
ORDER
[80] I therefore make the following order:
[80.1] The decisions taken by the Director General on 28 July
2017 and 8
th of November 2019 to refuse the first applicant’s application
under section 29(2) of the Immigration Act 13 of 2002 (as amended) are
reviewed and set aside;
[80.2] The decision of the Director General is remitted back to
the Director General for reconsideration.
[80.3] The Director General is directed to furnish adequate and
sufficient reasons for the decision to refuse / grant the first applicant’s
74 Ibid paras 43- 54, The Municipal Manager: The City of Johannesburg Metropolitan
Municipality and Others v San Ridge Heights Rental Property (Pty) Ltd (517/2022) [2023] ZASCA
109 (11 July 2023) at para 18
27
application for the upliftment of the prohibited persons status in terms of
section 29(2) of the Immigration Act.
[80.4] The Director General shall reconsider the application
and provide a new decision, with proper reasons, within 30 (days) of service
of this order.
[80.5] The respondent s are directed to pay the costs of the
application jointly and severally the one paying the other to be absolved.
Delivered: This judgment was prepared and authored by the Judges whose
names are reflected and is handed down electronically by circulation to the
Parties/their legal representatives by email and by uploading it to the electronic file of
this matter on CaseLines. The date for hand- down is deemed to be on 2 6 August
2025.
M VAN NIEUWENHUIZEN
ACTING JUDGE OF THE HIGH COURT,
JOHANNESBURG, GAUTENG
HEARD ON: 13 May 2025
DATE OF JUDGMENT: 26 August 2025
FOR APPLICANTS:
Adv S Kroep
INSTRUCTED BY:
Burgers Attorneys
FOR RESPONDENTS:
Adv L Kalashe
INSTRUCTED BY:
Offices of the State Attorney
Mr J Van Schalkwyk