SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023-054197
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
LORRAINE MASILELA Applicant
and
THE MINISTER OF HOME AFFAIRS 1st Respondent
THE DIRECTOR-GENERAL OF HOME AFFAIRS 2nd Respondent
This Order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by email as per email
address indicated in the practice notes . This Order is further uploaded to the
electronic file of this matter on Case Lines by the Judge or her Secretary . The
date of this Order is deemed to be 3 December 2025
JUDGMENT
Reid J
Introduction
[1] This is an application for review in terms of section 33 of the
Constitution of the Republic of South Africa, 1996, read with the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). The
applicant, Ms Lorraine Masilela, seeks to review and set aside the
respondents’ failure to make a decision regarding the lawfulness and
validity of her permanent residence exemption status, their failure to
finalise investigations into her status as an “illegal foreigner”, and their
failure to return her Zimbabwean p assport and permanent residence
identity document. She also seeks a declaration that her permanent
residence exemption status is valid and authentic, and an order for the
withdrawal of the deportation order issued against her.
[2] The application is opposed b y the respondents, who raised several
preliminary issues, including an unreasonable delay in bringing the
application, failure to exhaust internal remedies, and the alleged
fraudulent nature of the applicant’s permanent residence documents.
Background
[3] The applicant, a Zimbabwean national, entered South Africa in April
1992 as a minor on her father’s passport. She was issued with a
permanent residence exemption certificate on 29 November 1996
under reference number 704/96 MMA(D) in terms of section 23(a) and
28(2) of the repealed Aliens Control Act 96 of 1991. This exemption
was endorsed in her passport and later formed the basis for the issu ing
of a permanent residence identity document on 7 March 2012.
[4] The applicant is employed at Standard Bank on a full time basis as a
project manager. She was employed as such from 1 December 2015
and currently earns a gross income of R56,000 per month.
[5] The applicant resides in Gauteng and has resided at the same addr ess
for approximately 12 years. This property is held in her personal name.
The property is bonded with Standard Bank South Africa, to the value
of approximately R1.8 Million. The applicant and her husband also
share a second property to the value of R65 0,000 in Brakpan,
Gauteng, which is also bonded with Standard Bank South Africa.
[6] The applicant has no interests in Zimbabwe. She has several banking
accounts in South Africa. The applicant owns a 2012 Mercedez Benz
motor vehicle of which the value is a pproximately R473,000. The
vehicle is financed by SBVA, a division of Standard Bank Ltd.
[7] The applicant obtained her first and initial Zimbabwean passport under
passport number A[...]. This passport was issued by the Registrar
General in Bulawayo, Zimbabwe on 18 December 2000 and was valid
until 17 December 2010. The s econd passport of the applicant was
issued on 14 August 2020 and is valid until 13 August 2030 and was
issued by the Registrar General in Harare.
[8] The applicant was issued wi th a permanent residence exemption
certificate on 29 November 1996 by the respondents’ office in
Mmabatho under ref number 704/96/MMA(D). Such was issued as it
appears from stated exemption certificate in terms of section 23(a) and
section 28(2) of the repealed Aliens Control Act 96 of 1991. This is the
same permanent residence status as it appears from the exemption
certificate that was endorsed into the applicant’s first passport in terms
of Section 53(3) of the Immigration Act 13 of 2002.
[9] The applicant was in possession of a lawful permanent residence
identity document with identity number 8[...] based on her lawful and
legitimate permanent residence status granted to her by the
respondents. On 7 March 2012 the applicant was issued with a
permanent residence identity document by the respondents’ head
offices and under the authority of the 2nd respondent. With these
documents, she travelled between South Africa (where she works and
resides) and Zimbabwe (where she visits family).
[10] On 18 April 2022, when entering South Africa, the applicant was issued
with a Notice by Immigration Officer to personally appe ar before the
Director-General of the respondents and such was issued in terms of
section 7(1)(g) read with section 33(4)(c), Regulation 32(2) of the Act.
She was to appear at the respondents offices on 19 May 2022 to verify
her permanent residence status . The applicant’s permanent residence
identity document and 2 passports referred to above, were confiscated
by the respondents. The applicant received a form described as
“Receipt of Items Seized in terms of section 7(1)(d) read with section
33(5)(c), Regulation 32(5) of the Act.”
[11] The applicant has never qualified or applied for South African
citizenship in terms of the South African Citizenship Act 88 of 1995 /17
of 2010 ("the amended Act"). She does not have a criminal record and
has never been charged with any contravention in terms of immigration.
The applicant has a clearance certificate from the South African Police
Service (SAPS) that she does not have any criminal matters against or
pending against her.
[12] The applicant has obtained permanent residence status and her
permanent residence identity document and received permanent
residence status and certificate as far back as 1996, some 26 years
ago, and has travelled with such extensively over approximate 26
years. The docume ntation has never before been placed under
investigation, in dispute or under scrutiny.
[13] The applicant married her Zimbabwean spouse on 29 April 2015. He
has been issued a VFS Receipt for Critical Skills Permit on 16
September 2022. They have 2 children who were born in South Africa.
[14] On 18 April 2022, while departing South Africa, the appli cant was
served with a notice to appear before the Director -General to verify her
permanent residence status. Her passport and permanent residence
identity document were confiscated. On 26 April 2022 she was served
with an order to depart South Africa by 1 8 May 2022, failing which she
would be arrested and deported.
[15] The applicant’s attorneys made several attempts to engage the
respondents, including requests for reasons and access to information
under PAJA. The first respondent, in a letter dated 21 September 2022,
asserted that the applicant’s permanent residence identity document
was fraudulent and that section 8 of the Immigration Act 13 of 2002
(Immigration Act) was not applicable as the matter was described as
one of a “straight arrest”. Section 8 of t he Immigration Act deals with
review and appeal procedure in the framework of that Act.
Issues for Determination
[16] The key issues for determination are:
16.1. Whether the applicant’s application was brought after an
unreasonable delay.
16.2. Whether the applicant failed to exhaust internal remedies.
16.3. Whether the respondents’ failure to provide reasons and afford
the applicant her rights under section 8 of the Immigration Act
renders the administrative action procedurally unfair.
16.4. Whether the applicant’s per manent residence documents should
be regarded as fraudulent for the purposes of this application.
16.5. Whether the court should grant the relief sought, including a
substitution order.
Unreasonable Delay
[17] The respondents contend that the application was brought after an
unreasonable delay of 16 months, contrary to section 7(1) of PAJA,
which requires that review proceedings be instituted without
unreasonable delay and not later than 180 days after the date of the
administrative action.
[18] The applicant, however, a rgues that the delay was due to the
respondents’ failure to provide reasons and failure to respond to her
attorneys’ correspondence. She also points out that the respondents
themselves were responsible for significant delays in filing their
answering affidavit, which was filed 11 months out of time.
[19] In Madikizela-Mandela v Executors, Estate Late Mandela and
Others 2018 (4) SA 86 (SCA), the court emphasised that the
determination of unreasonableness involves a factual inquiry and a
discretionary one. In th e Madikizela-Mandela matter, review
proceedings were instituted in 2014 seeking an order declaring the
Minister's decision of 16 November 1997 (to donate property ) as null
and void , alternatively, reviewing and setting aside that decision and
ancillary relief . The Supreme Court of Appeal found that the appeal
should be dismissed on the basis of the excessive undue delay,
coupled with the potential for severe resultant prejudice to b e suffered
by the respondents, and the lack of an acceptable explanation for the
unreasonable delay.
[20] The applicant’s explanation, coupled with the respondents’ own
conduct, justifies the delay in this case. The interests of justice require
that the matter be heard on its merits. This point in limine therefore
fails.
Failure to Exhaust Internal Remedies
[21] The respondents argue that the applicant failed to exhaust internal
remedies under section 8 of the Immigration Act. However, the
respondents themselves admitted in their correspondence that they did
not afford the applicant her rights to be heard under section 8, claiming
it was unnecessary as the matter was a “straight arrest” and remains
under investigation.
[22] In Koyabe and Others v Minister for Home Affairs and Others 2010 (4)
SA 327 (CC) at para 44 the Constitutional Court held that the duty to
exhaust internal remedies is not absolute where the administrator has
failed to inform the affected person of their rights. The duty to exhaust
internal remedies is not an absolute duty and a party, such as the
applicant, cannot be forced to make use of an internal process that
would be ineffective.
[23] This point in limine can therefore not be upheld.
Procedural Fairness and the Right to Reasons
[24] The applicant was not informed of her right to request a review or
appeal under section 8 of the Immigration Act. She was also not
provided with written reasons for the decision to declare her an “illegal
foreigner” and to confiscate her documents , when her identification
documents were confiscated.
[25] In Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources
(Pty) Ltd and Others 2011 (4) SA 113 (CC) the Constitutional Court
held in paragraph [73] that a person affected by a decision:
“should be informed by the department of the application and its
consequences, and it should be given an opportunity to make
representations in regard thereto.”
[26] The first respondent’s letter of 21 September 2022, which merely
asserted that the applicant’s documents were fraudulent without
providing detailed reasons, does not satisfy the requirement of
procedural fairness under PAJA and section 33 of the Constitution.
[27] The respondents’ failure to comply with section 8 of the Immigration Act
and section 3(2)(b) of PAJA, which requires adequate notice of the
right to request reasons and the duty to provide such detailed reasons,
falls short in rendering the respondent’s administrative action
procedurally fair.
Fraud Allegations
[28] The respondents allege that the applicant’s permanent residence
exemption certificate is fraudulent because the reference number
704/96 MMA does not correspond with the register of ex emptions for
the Mmabatho office, which they claim is 337/96. This is the basis on
which the respondents claim that the applicant’s documents were
obtained fraudulently.
[29] However, the respondents have not provided any sworn testimony from
the first respon dent or any corroborating evidence, such as a copy of
the register itself, to substantiate this allegation. The reference to
different referral systems of the respondent does not prove that the
applicant’s documents are fraudulent. Neither does the second
respondent’s reliance on a traveller’s record syste m which is not
supported by the relevant extract or a supporting affidavit.
[30] Moreover, the respondents issued the applicant a permanent residence
identity document in 2012, which would not have been poss ible if her
underlying permanent residence status was invalid. This supports the
applicant’s contention that her documents are authentic.
Substituted Order
[31] The applicant seeks a substituted order declaring her permanent
residence exemption status valid an d authentic in addition to directing
the respondents to return her documents and withdraw the deportation
order.
[32] In Trencon Construction (Pty ) Limited v Industrial Development
Corporation of South Africa Limited 2015 (5) SA 245 (CC) , the
Constitutional Court held that a substituted order may be granted in
circumstances where:
32.1. The court is in as good a position as the administrator to make the
decision;
32.2. The decision of the administrator is a foregone conclusion; and
32.3. It is in the interests of justice to do so.
[33] In this case, this Court is not in as good a position as the respondents
to make a decision in relation to the validity and legality of the
applicant’s status as immigrant in the country. A thorough investigation
is necessary to be conducted by the respondents, with more details as
only the reference numbers of the ex ception certificate , in orde r to
determine the legality of the applicant ’s status. Correspondence dated
21 September 2023 from the respondents indicate that the case “is still
under investigation”. There is thus no finality at the moment.
[34] On this basis the investigation on the leg ality and validity of the
applicant’s identity and residential status should be referred back to the
respondents for determination.
Conclusion
[35] The applicant did not unreasonabl y delay the launching of the
application in the circumstances.
[36] The applicant furthermore made a case for the relief sought that she is
not obliged to exhaust internal remedies as she was not informed of
her rights under section 8 of the Immigration Act . She was also not
able to appeal, since the question of her status wa s busy being
investigated by the respondents. An appeal would thus be seen as
premature.
--
[37] The respondents’ reasons for issuing an order of deportation, is of
minimal detail only referencing that the applicant has been issued with
an incorrect reference number. An investigation should be done by the
respondents to establish the manner in which the applicant was issued
a residential document with a different reference number from that of
the Mmabatho office.
[38] The application is successful as the applicant has made a proper case
to be granted a review of the 1 st and 2 nd respondents’ inaction in
making decisions and setting aside thereof.
[39] The applicant requests an order that the seized documents should be
declared valid and lawful. This Court doe s not have the power to grant
such an order, as it would amount to encroachment of the separation of
powers principle. This Court will therefore refrain from making any such
order.
[40] In these circumstances, as set out above in paragraph [24], the court
can only make an order to review and set aside the inaction of the
respondents, and refer the question of the legality of the appli cant’s
status back to the respondents.
Order
The following order is made:
(i) The 1st and 2nd respondent's inactions, inability, and failure to make
a decision and resolve and finalise the lawfulness and validity of the
applicant's permanent residence exemption status in accordance
with Section 23(a) and 28(2) of the Repealed Aliens Control Act 96
of 1991 is reviewed and set aside.
(ii) The 1st and 2nd respondent's inactions, inability, and failure to
resolve and finalise current apparent further investigations
pertaining Applicant's order as an illegal foreigner to depart from the
Republic i n terms of section 7(1)(g); Regulation 30(4) of the
Immigration Act 13 of 2002 (as amended) (the Act) is reviewed and
set aside.
(iii) The first and second respondents’ inaction, inability, and failure to
return to the applicant her Zimbabwean passport (number G[...])
and her permanent residence identity document (number 8[...]) is
reviewed and set aside.
(iv) The 1st and 2nd respondents are ordered to return to the applicant
her Zimbabwean passport (number G[...]) and her permanent
residence identity document (n umber 8[...]) within 10 days of this
order.
(v) The 1st and 2 nd respondents are ordered to conduct a diligent
investigation to determine the legality and validity of the applicants’
residential and immigration status in South Africa.
(vi) The 1st and 2nd respondents are ordered to pay the costs of this
application on a party and party scale, scale A , including the costs
of two counsel where applicable.
________________________________
FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
DATE OF ARGUMENT: 6 AUGUST 2025
DATE OF JUDGMENT: 3 DECEMBER 2025
APPEARANCES:
FOR THE APPLICANT:
COUNSEL: ADV S KROEP
INSTRUCTED BY: BURGERS ATTORNEYS
E-mail: diane@burgersattorneys.com
FOR THE RESPONDENT:
COUNSEL: ADV. JM MIHLANGA
INSTUCTED BY: STATE ATTORNEY PRETORIA
EMAIL: WMotsepe@justice.gov.za
NoNgcobo3@justice.gov.za