IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: 148643/2024
In the matter between:
PETER SUNDAY AKINSANYA Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR GENERAL DEPARTMENT
OF HOME AFFAIRS Second Respondent
Neutral citation: Peter Sunday Akinsayna vs Minister of Home Affairs and one
other (Case no 148643/2024) [2025] ZAWCHC (04-11-2025)
Coram: PATHER AJ
Heard: 22 October 2025
Delivered: 4 December 2025
Delivered: This Judgement was handed down electronically by circulation to the
parties’ legal representatives by email and by uploading to Caselines and release d to
SAFLII. The date and time for hand down is deemed to be 04 December 2025 .
Summary: Immigration Act 13 of 2002 – section 29(1) – declaration of foreigner as
prohibited person – reviewing and setting aside the Minister’s decision to declare a
person a prohibited person – factors to consider – fraud and non -disclosure by
Applicant- whether good cause exists - whether the Minister acted unfairly- intention
of the Applicant when he entered South Africa on a visitor’s visa
Promotion of Administrative Justice Act 3 of 2000 – review – failure to consider
relevant factors – consideration of irrelevant factors – sufficient evidence required to
show consideration of all relevant factors
ORDER
1. The Application is dismissed.
2. The decision by the First Respondent not to review the applicant’s status as a
prohibited person is declared to be valid.
3. The Applicant is ordered to pay the costs of this review , including those of
counsel, on scale A.
JUDGEMENT
PATHER, AJ
Introduction
[1] The applicant seeks an Order to review and set aside the decision of the First
Respondent (“the Minister”) dated 4 September 2024 rejecting his Appeal in terms of
Section 8(6) of the Immigration Act 13 of 2002, as amended (“the Act”) to be
declared a non-prohibited person the Applicant to be a prohibited person.
[2] In the alternative, Applicant seeks that the First Respondent be directed to
retake a decision on the Applicant’s application and to deliver such decision within
thirty (30) days from service of this Order.
[3] The Application was brought in terms of Section 6(1) of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”), read wit h Rule 53 of the Uniform
Rules. Further, the Applicant relies on Section 33 of the Constitution.
The Applicant’s founding affidavit is somewhat absent about the actual facts
surrounding his entry into South Africa, and light is shed on this from the
Respondents’ answering affidavit.
[4] The Applicant first entered South Africa on 12 November 2014. He came to
South Africa on a single-entry visitor’s visa which visa is used when one enters the
country for holiday or a vacation. He did so as he was a Nigerian citizen, and an
international traveller. A visitor’s visa is usually for persons who wish to ente r the
country on a temporary basis for tourism. Having a visitor’s visa does not mean that
you may remain in the country indefinitely. It merely means that the application for a
visa was reviewed by the South African embassy, and that the office of the
Consulate General has determined that one is eligible to enter the country for the
reason stated in the visa app lication. The visa application is a document where the
visitor has an obligation to set out his/her details truthfully and in detail.
[5] The visa will stipulate one’s entry date into the country and the exit date out
of the country. In respect of the Applicant, his visa would have expired on 22
of the country. In respect of the Applicant, his visa would have expired on 22
November 2014. The Applicant , however, did not exit the country when his visa
expired, as he was supposed to have.
[6] What the Applicant says , however, is that instead of exiting South Africa, he
applied for a work visa from within the Republic . One cannot convert a visitor ’s visa
to a work visa, and if another visa is required, it is clear that this must be applied for
from the country of origin and not from within South Africa. In the present case, and
if the Applicant decided that there was a prospective employment opportunity in
South Africa, then he would have had to have exited the country and made an
application from Nigeria for a work visa to be issued. This the Applicant did not do.
The Applicant says that:
2.1 he is a Nigerian citizen.
2.2. he entered South Africa on a 10-day Visitor’s Visa on 12 November 2024;
2.3 applied for a work visa whilst on a Visitor’s visa;
2.4 used the services of a Visa Agent only known as “Sam” whom Applicant says
he paid R23 000 for his application for a work visa;
[7] It is difficult to track what the Applicant had in mind when he entered South
Africa on the visitor’s visa. Applicant states that he obtained a work visa from within
the Republic of SA for the purpose of taking up employment at a company called
Mortu Mortu (Pty) Ltd.
[8] By this stage , I had already been made aware that the Applicant’s visitor’s
visa had expired and he was in the country illegally. He then applied for a work visa,
also illegally. The Respondents uncovered that prior to the Applicant’s visitor’s visa
being issued in 2014, there existed a work v isa issued in the name of the Applicant
on 19 December 2013, for employment by the same company as the one that was
applied for in 2015, and which visa was “valid” up to 2018. There is no plausible
explanation for how the 2013 work visa pre-dates the visi tors’ visa. Whilst the
Applicant attempts to distance himself from the first work visa (2013), the
Respondents demonstrate that the said visa was attached to the Applicant’s
permanent residence application.
permanent residence application.
[9] According to the Applicant, he has no knowledg e as to how the 2013 work
visa found its way as an annexure to his permanent residence application, but he
could only assume that this was due to the fact that the Agent who processed the
application attached this, without his consent or his knowledge. If this were to be
accepted as an explanation, there is no further explanation as to how the said agent
would have acquired the visa , how the Applicant signed the application without
noticing the annexure and why this was not explained by him at all. The permanent
residence application was made on 18 February 2019.
[10] The Applicant’s counsel in his heads of argument refers to the 2013 work visa
and allude s to the suspicion of irregularity that the respondents approach ed the
applicant with. What , however, is not dealt with is why this was not disclosed at all
by the app licant in his application to this court. Also, the Applicant’s permanent
residence application was made 15 months prior to the expiry of the Applicant’s 2015
work visa. The explanation tendered by the Applicant’s attorney and counsel is that
they are awa re that the Respondents take a long time to deal with these
applications, so they were of the view that if Applicant’s attorney lodged the
application earlier than the regulations prescribe d, by the time the application was
attended to, the 2015 work vis a would have come to an end. They suggested that
they were being proactive to act in advance. This reasoning is concerning.
[11] The above events can only be described as a calamity of illegal conduct by
the Applicant, almost making an error at every turn in trying to stay in the country.
The papers and in particular the Respondents’ answering affidavit shines a light on
the attempts made by the Applicant to remain in the country, and this has all been
abortive.
[12] This application deals with Respondents’ reje ction of the Applicant’s
permanent residency application. The permanent residency application was rejected
for various reasons which were inter alia summarized as follows:
- The Applicant had a negative police clearance.
- The work visa that was submitted was fraudulent.
- The work visa that was submitted was fraudulent.
- By virtue of the Respondents finding that the work visa was fraudulently
obtained, this brought about the Applicant being rendered a prohibited person
and he was flagged as such in terms of Section 29(1)(f) of the Act.
[13] Not deterred by the state of events and the fact that the Applicant is on the
Respondents’ radar, the Applicant is not dissuaded by the rejection of his permanent
residence appl ication, and he then applies for a stu dy visa a few months after his
permanent residence application was refused. This application was rejected for
Applicant having submitted a fraudulent work visa purported to have been issued by
the Department of Home Affairs.
[14] The Applicant then brought an application in 2021 in terms of Section 29 (2) of
the Immigration Act for a declaration that the Applicant be declared to be a “non -
prohibited person”. The Applicant supplied a South African issued criminal
expungement certificate, which would have been issued by the South African Police
Services Criminal Records Centre. Despite the fact that the expungement certificate
allegedly issued by SAPS was found to be fraudulent, the application was rejected
for the fact that additionally, the Applicant had overstayed his visitor’s visa, and he
had attempted to change his status from a visitor status to work status , which is not
permitted. The Department also raised the fact that the Applicant was found to have
possessed two work visa s that were purportedly fraudulently issued. The
Respondents contend that this decision was not appealed by the Applicant. For the
upliftment of the prohibition
[15] The Applicant then instituted another application in terms of Section 29 (2) of
the Act on 8 February 2024. This application was rejected on 4 September 2024 for
the following reasons:
- The fraudulent work visa and non-cooperation with the investigation;
- Lack of credibility;
- Lack of South African expungement of criminal record;
[16] The Applicant then instituted an application for the reconsideration of the
above decision on 29 October 2024, challenging the reasons that were furnished in
the rejection letter.
- There was no formal communication regarding the investigation.
the rejection letter.
- There was no formal communication regarding the investigation.
- The lack of credibility of the Applicant’s version;
- No authentic criminal expungement certificate existed
[17] What I am certain of in regard to the papers filed is that there existed 2
fraudulent work visas. The Applicant will contend that he is unaware and that this
was the work of an agent. I do not accept that explanation. The Applicant met the
agent, he was told that the Agent can assist. He knew that the agent was not an
employee of Home Affairs, or else he would not have met him at the Gauteng Train
Station. He paid him R23 000 in cash for the work that was to be done. This is
suspicious and clearly was a “contact” being used to short-circuit the process and
bypass the systems, rules and regulations that were in place. The fact that the two
work visas are for em ployment at the same company is nothing short of a red flag.
Sam, the agent, is clearly involved in underhanded activities with the Department of
Home Affairs. The Applicant knew that Sam “would make a plan” and therefore
engaged with him. The futile att empt by the Applicant to distance himself from Sam
and blame Sam for filling in his forms is unacceptable.
[18] The Applicant had no intention to come to SA to visit in 2014, when he arrived
with his visitor’s visa. His intention was to remain in the country and use whatever
means he could to obtain status in South Africa and he did not have any difficulties in
achieving this by illegal means.
[19] Everything that the Applicant did to regularise his stay in South Africa was
through underhanded means. The Applican t was not a victim of a scam , but rather
he cooperated with the scam so as to achieve his own agenda. This is borne out in
the steps that he took.
[20] The Applicant started off with his visitor’s visa, then he attempted to seek
asylum. He is told the process is long and he should rather apply for a work visa. At
that point , he knew that he wanted to short-circuit the legal systems that were in
place. He then applies for a work visa, then he finds out there was an existing work
place. He then applies for a work visa, then he finds out there was an existing work
visa application in 2013 , then he applies for a student visa. The application for a
student visa is riddled with further queries. The applicant, according to his permanent
residency application is a Software Engineer, yet in his student visa application, he
wants to enrol to study to be an IT Software Developer. He does not apply to a
recognised accredited institution but to a college . This is suggestive that he wanted
to tick any box applicable to remain in SA. This meant that declarations that he had
to sign when filling in forms were not truthful.
[21] The version of events as set out by the Applicant is problematic on various
grounds, and I cannot ignore this . The Applicant’s founding affidavit omits salient
information regarding his applications, yet these are not disclosed. The
Respondents’ answering affidavits deal with these issues and the Applicant then
tries to answer these allegations in reply. This court views the b Applicant’s conduct
as disingenuous
in not being upfront with all of these facts, and the irresistible conclusion that the
court can draw is that the Applicant was being cautious as he was unsure what the
Respondents were aware of in so far as the facts were concerned. This is a
dangerous tactic.
[22] I am in agreement with the Respondents that the reasons set out in the
rejection letters are adequate. In Koyabe v Minister for Home Affairs the court stated
as follows:
“Although the reasons must be sufficient, they need not be specified in
minute detail, nor is it necessary to show how every re levant fact
weighed
in the ultimate finding. What constitutes adequate reasons will
therefore
vary, depending on the circumstances of the case. Ordinarily, reasons
will be adequate if a complainant can make out a reasonable substantial
case for a ministerial review or an appeal.”
[23] The reasons that the Applicant sets out for rejecting the Respondents’ 2024
application are that the Applicant was unaw are that a 2013 visa application was
submitted in his name, that the 2015 visa was validly and legally issued, and that the
Applicant had never been deported.
[24] On the issue of the 2013 Visa I do not accept that he was unaware of this, as
his details were u sed and this could not have been a mere coincidence. The
Respondents say that the Applicant, under oath stated that he applied for permanent
residence after expiry of his visa, and according to the version that the Applicant puts
before this court, the onl y visa that expired would have been the 2013 visa .
Respondents’ criticism of the Applicant goes further in that they say that he would
not have had a work visa for the required minimum period of 5 years , thus qualifying
him to apply f or permanent residency in February 2019. They say that it is illogical
that he prematurely applied for permanent residency in these circumstances.
[25] Whilst the Applicant’s counsel contends that the Respondents do not allege
that the 2015 visa was fraudule ntly obtained. The Respondents disagreed with this
and submitted that the visitor’s visa cannot be converted to a work visa. They also
submitted that at the time the Applicant is alleged to have applied for the 2015 work
visa, he was already in the country on a visitor’s visa that was valid for 10 days, and
this means that when he applied for the work visa he would have been in the country
illegally. He also applied for a work visa from within the country . Also, the rejection
letter of the 2015 visa, which the Applicant puts up in his papers clearly states that
the Respondents were aware that the Applicant was in possession of two fraudulent
work visas
[26] The various inconsistencies regarding his employment and Applicant’s
version that he was told where he would work and the position, he would occupy do
not sound logical or convincing. One would expect that he would have been able to
put up a bona fide offer of employment that he received. This was not put up in any
of the papers that were before me.
[27] The Respondents submitted that the Applicant would have known that he was
[27] The Respondents submitted that the Applicant would have known that he was
paying a bribe when he paid the cash to Sam at the Gautrain Station. It is common
sense that the Applicant ought to have known that he should not have been in South
Africa after his visitors visa had expired, and he should have returned to Nigeria and
regularised his status in South Africa through formal, legal processes.
[28] Much was made of the fact that the Respondents made reference to the
Applicant being deported when , in fact , this did not occur. Nothing turns on this.
The fact is that the Applicant ought to have been deported the moment his visa
expired unless compelling reasons required him to remain in South Africa despite the
expiration of his visitor’s visa. The dispute raised by the Applicant is a last -ditch
attempt to render the Respondents’ decision reviewable and this court does not
accept this excuse. The overwhelming facts surrounding the expiration of the visitor’s
visa, the fraudulent work visas , the student visa application and the permanent
residency application supersede the insertion of the deportation note in the letter of
rejection. This cannot be a reason to review the decisions of the Respondents.
[29] The Court is aware of its power to judicially review an administrative action ,
and this is done where the court is aware that relevant considerations were not
considered, and in the converse, irrelevant considerations were considered by the
decision maker. In this ma tter, this is not the case. The Respondents considered
material facts such as the factors that deal with the Applicant being in possession of
at least two fraudulent visas, pursuant to irregular applications privately through a
“visa agent”. The Second Re spondent is the only authority to issue a visa, and the
Second Respondent categorically states that the visas that the Applicant was in
possession of, were not issued by Second Respondent.
[30] This court finds that it was immaterial that the Applicant owned/o wns property
in the country, had a valid driver’s license as compelling reasons for the First
Respondent to consider the application for permanent residency favourable. In fact,
this court has serious concerns regarding the purchase of immovable property by the
Applicant and the documents used to give effect to the transfer. No proper
Applicant and the documents used to give effect to the transfer. No proper
information was put up of the transfer , but rather a letter from the conveyancer.
There are strict compliance requirements to transfer immovable property and none of
these documents were put up. I am concerned that the acquisition of the property
could have been done so fraudulently or irregularly.
[31] The Respondents state in their head s of argument that the Applicant was not
declared undesirable in terms of Section 30(1) of the Act. They state that to do so
would be considered irrational. What they say they did was declared the Applicant to
be prohibited in terms of Section 29(1)(f) of the Act which states:
“The following foreigners are prohibited persons and do not qualify
for a port of entry visa, admission into the Republic, a visa or
a permanent residence permit:
(f) anyone found in possession of a fraudulent visa, passport, permanent
residence permit or identification document”
[32] The Respondents stated that in 2024, the Applicant applied in terms of
Section 29(2) of the Act, in which he endeavoured to show good cause why the
Second Respondent should declare him a non-prohibited person. The Respondents
state that on both occasions that the applications were brought, they were
considered and then rejected. The Respondents believe that the Applicant felt
entitled to additional engagement before the decision was made. The Court does not
believe that any further engagement was necessary.
[33] The Court accepts that the Respondents considered all the factors governing
the applications and the rejection was validly made. The Applicant’s counsel argued
that the case that I should consider is Bihombel & Makali v Minister of Home Affairs
And another (9940/2022) [2024] ZAWCHC 72 (6 March 2024) and stated that the
present case is indistinguishable from the said authority.
[34] I disagree with the Applicant’s reliance on the Bihombel authority, as when the
applicants in the case referred to applied for a work visa they were already legally in
the country. We know that the Applicant’s visitor’s visa had expired. The Applicants
made enquiries in regard to the discovery that their visas were fraudulent. In the
present matter, the Applicant does nothing and , in fact, uses the fraudulent visa to
advance his permanent residence application. The Applicant in the authority
facilitated the arrest of the visa agent. In the present matter the Applicant stated he
facilitated the arrest of the visa agent. In the present matter the Applicant stated he
knew nothing about Sam and could offer no details what soever. What is also telling
is that when the Applicant in the present matter is told that his visa is fraudulent in
2019, he does not report the matter to the authorities, nor does he deal with the
agent or find out where the agent was. He instead appli es for another category of
visa, i.e. Student visa.
[35] Section 33(1) of the Constitution gives everyone the right to “administrative
action that is lawful, reasonable and procedurally fair”. Section 33(3) states in part
that “[n]ational legislation must be enacted to give effect to these rights”. The
relevant national legislation is the PAJA. In Minister of Defence and Military Veterans
v Motau and Others 2014 (5) SA 69 (CC) Para 33, the Constitutional Court explained
the factors to consider when determining whether conduct amounts to administrative
or executive action. It stated:
“The concept of “administrative action”, as defined in section 1(i) of PAJA, is
the threshold for engaging in administrative -law review. The rather unwieldy
definition can be distilled into seven elements: there must be (a) a decision of
an administrative nature; (b) by an organ of state or a natural or juristic
person; (c) exercising a public power or performing a public function; (d) in
terms of any legislation or an empowering provision; (e) that adversely affects
rights; (f) that has a direct, external legal effect; and (g) that does not fall under
any of the listed exclusions.”
[36] In the present matter, the actions of the Respondents , whilst administrative in
nature, were correct and the execution of their administrative functions was valid.
[37] This is not the first time that decisions by the respondents to declare a person
prohibited in terms of section 29 of the Act is before our Courts and in circumstances
that warrant a review, this fal ls within the definition of administrative action and is
reviewable under the PAJA. In Klemenc v Head of Immigration Inspectorate and
Others 2024 JDR 1729 (GP) page 12, this Court said:
a) “The most important question before me is whether the
prohibition can be regarded as administrative action.
b) There must be a decision to declare a person prohibited.
b) There must be a decision to declare a person prohibited.
c) That decision is taken by an organ of state, exercising a public
power performing a public function in terms of any legislation…
d) In this instance the decision is taken in terms of Section 29(1)(f)
and 29(2) of the Immigration Act .
e) The Respondents were exercising a public power in terms of
legislation.”
[38] Having considered these authorities, there is no other conclusion that I can
reach but that the Respondents’ actions are administrative ly correct and that the
Applicant has failed to show good cause as was required from him in his application.
The Application cannot succeed.
[39] The Respondents were su ccessful and there is no reason that costs should
not follow the result.
[40] In the result the following order is made:
Order
1. The review application is dismissed.
2. The Applicant is ordered to pay the costs of this review, including those of
counsel, on scale A.
_____________________________
PATHER AJ
ACTING JUDGE OF THE HIGH COURT
Appearances
For Applicant: S G Barclay-Beuthin
Instructed by: Stefanie De Saude-Darbandi
For Respondent: Diana Murote
Instructed by: Andre Strauss – State Attorney