1 July 2019 by and Employment Alert

Delayed visa and permit applications: When your application gets ‘lost in the system’

In the case of Director-General of the Department of Home Affairs and Others v De Saude Attorneys and Another [2019] 2 All SA 665 (SCA) (29 March 2019), the Supreme Court of Appeal (SCA) dismissed an application by the Department of Home Affairs (the Department) to appeal an order by the Western Cape Division of the High Court, Cape Town wherein the court compelled the Department to process applications and appeals within the structure of the Immigration Act, No 13 of 2002 and the South African Citizenship Act, No 88 of 1995 after prolonged delays.

The application in the High Court, brought at the instance of De Saude Attorneys and Immigration Management Services SA CC also known as Visa One (the Applicants), sought to compel the Department to comply with their obligations in terms of the Constitution and the relevant legislation by making decisions within set deadlines. The Applicants, at the time that the application was heard in the High Court, represented 323 affected individuals who were foreign nationals and who had been subject to the Department’s failure to make timeous decisions regarding their permanent residency permits and visas.

The Applicants’ main contention in this matter was that the Department has for several years now, been failing to determine applications made to it in any reasonable or lawful time period. The Applicants insisted that this is part of a repeated pattern of how the Department deals with applications which its officials are constitutionally and statutorily obliged to determine.

The Department’s response to the application was not to challenge the facts laid out by the Applicants (which included numerous examples of what the court deemed “devastating effect[s]” of the delays), but rather to challenge the Applicants’ application on technicalities such as locus standi, the jurisdiction of the High Court and to adopt the position that there was a case of misjoinder.

On the question of locus standi, the court referred to various case law to emphasise that a broad approach must be taken when it comes to standing and that the Constitution expands the persons with standing beyond a direct and substantial interest and now includes people who act on behalf of people who can’t act or on behalf of the public interest in general. The Department tried to argue that the Applicants were acting purely in their own financial interest. The court however, refused to accept this notion and held that the Applicants’ clients as well as the South African public at large, have an interest in the proper administration of legislation. The Applicants illustrated that the broader public interest was being implicated by this institutional dysfunction and were as such, held to have locus standi.

The SCA further held that the Department’s reliance on misjoinder was without merit in that the Department was disillusioned in suggesting that the Applicants’ clients each launch a separate application with concomitant costs which the taxpayer must bear the burden of. The court highlighted that each application would have the same overall complaint, that the Department failed to meet its statutory obligation to make decisions timeously.

Lastly, insofar as the jurisdiction of the High Court in Cape Town was concerned, the Department contended that since adjudicative functions were carried out in Pretoria and the statutory decision makers and supervisory officials were located there, the High Court in Cape Town had no jurisdiction. The SCA, in having regard to s6(1) of the Promotion of Administrative Justice Act, No 3 of 2000, its definition of ‘court’ and the provisions of the Superior Courts Act, No 13 of 2010, held that the Minister of Home Affairs had a principal place of business within the jurisdiction of the High Court and that by virtue of the provisions of the Superior Courts Act, the High Court in Cape Town had jurisdiction to entertain the application. The court concluded by remarking that the ineluctable conclusion is that the stance adopted by the Department in respect of the litigation was one that was deliberately obstructive and dilatory and that its approach was unconscionable and disgraceful. The appeal was dismissed.

This case therefore only adds to the plethora of case law against the Department in its failing to adjudicate visa and permit applications timeously. The SCA does however, provide some helpful jurisprudence to assist foreigners with access to courts in order to compel the Department to process long, outstanding visa and permit applications which seem to have become ‘lost in the system’.

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