Director-General, Department of Home Affairs and Others v Link and Others

• Jurisdiction: South Africa
• Judge: Goliath DJP, Gamble J and Sher J
• Judgment Date: 17 October 2019
• Citation: 2020 (2) SA 192 (WCC)
• Docket Number: A 324/18
• Hearing Date: 17 October 2019
• Counsel: K Pillay SA (with A Nacerodien) for the appellants. First and second respondents in person.
• Court: Western Cape Division, Cape Town

Sher J (Goliath DJP and Gamble J concurring):

[1] This is an appeal against a judgment and order of this court, in terms of which it reviewed and set aside decisions of the Deputy Director-General and the Director-General of the Department of Home Affairs (the appellants), whereby they refused applications by the respondents for the grant of permanent residence, and the court ordered them to issue such permits to the respondents.

[2] In arriving at its decision the court a quo exempted the respondents from any obligation which they may have had in terms of the Immigration Act [1] (the 'IA') and the Promotion of Administrative Justice Act [2] (PAJA) to exhaust domestic remedies of appeal or review of the aforesaid decisions, prior to obtaining any relief from the court.

The factual background

[3] The respondents are two German married couples: the Links and the Dornseifers. The Links first came to South Africa (SA) in 2001 and have been living in Paarl since 2013. Their stay in SA has occurred in terms of a variety of temporary visas ranging from tourism to business visas. [3] The Dornseifers visited SA on a number of occasions. After a two-month visit between April and June 2014 Mr Dornseifer decided to apply for a retired person's visa, [4] which was granted via the SA diplomatic mission in Berlin on 14 October that year. It was valid for a period of five years, until December 2018.

[4] In January 2015 the Dornseifers made application for the grant of permanent residence, and whilst they were awaiting the outcome thereof they moved into a house they had built in Sandbaai and shipped over their household effects from Germany. The Links in turn invested approximately R9 million in a property in Paarl and also brought over all their

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household effects from Germany, as well as their domestic animals which included a number of horses, dogs and a cat. Mr F Link, who was previously employed as a tax consultant in Germany, opened a consultancy business in SA in terms of his business visa and he and his partner became involved in a number of community-based social-upliftment projects in various areas in the Western Cape, including Kayamandi. The Links made application for the grant of permanent residence in June 2015.

[5] Neither the Links nor the Dornseifers received any response to their applications. In November 2016, some two months short of two years after the Dornseifers had lodged their applications, their attorneys addressed a letter to the Department of Home Affairs, c/o the Director-General (DG), in which it was formally requested to consider and make known its decision in respect of their application for permanent residence within 30 days, failing which application would be made to court for an order compelling it to do so. A month later the same attorneys addressed a similar letter to the Department on behalf of the Links. Neither of these letters were responded to.

[6] In the absence of any acknowledgement by the Department that it was attending to the matter, on 21 December 2016 the Dornseifers launched an application to compel it to take the necessary decision, within 30 days. Once again, there was no formal response. Consequently, on 17 January 2017 an order was taken by agreement, whereby the DG was directed to consider the Dornseifers' applications for permanent residence within 30 days, and was held liable to pay the costs of the application.

[7] Even the court order did not move the Department to action, and it too was simply ignored. This prompted an application to hold the DG in contempt, which was not opposed. It resulted in an order being taken, by agreement, on 30 March 2017 declaring the DG to be in contempt and directing him to purge it by making a determination in respect of the Dornseifers' applications within five days, failing which the matter would be set down for the grant of an appropriate order. In relation to this application too the DG was ordered to pay costs: this time on an attorney – client scale.

[8] In the meantime, the Links' efforts to obtain a decision in regard to their applications followed almost an identical path. A letter of demand from their attorneys shortly before Christmas 2016 was similarly ignored and their application to compel also resulted in an order being taken by agreement on 23 February 2017 whereby the DG was directed to make a determination within 30 (calendar) days, ie before the end of March 2017.

[9] On 3 April 2017 the Deputy Director-General (DDG) addressed identically worded letters to Messrs Dornseifer and Link in which he informed them that their applications (as principal applicants) for the issue of permanent-residence permits had been refused. The DDG pointed out that in terms of the relevant statutory provision [5] he was authorised to issue such a permit to a foreigner of good and sound character who intended to retire in the Republic and who proved to his

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satisfaction that he or she had the right to a pension, irrevocable annuity or retirement account which provided a prescribed minimum income of not less than R37 000 per month, or alternatively had a prescribed minimum net worth in the form of assets which would realise at least such a prescribed minimum amount per month.

[10] In each of these letters the DDG stated that the applicants had failed to produce 'adequate proof' that they met the prescribed financial requirements and they consequently failed to qualify for permanent residence. No reasons were set out in support of this statement. The applicants were simply informed that they had 10 working days within which they could make representations for a review or appeal, failing which the decision which was communicated to them would remain 'effective'.

[11] A week later, on 10 April 2017, the Dornseifers' attorneys responded in a letter to the DDG and the DG in which they pointed out that, according to the voluminous documents which had been submitted in support of the Dornseifers' applications, Mr Dornseifer was in receipt of a monthly income totalling R39 342,90 by way of pension and policy pay-outs from German sources, and as such his earnings exceeded the prescribed financial requirements.

[12] The Dornseifers' attorneys further pointed out that in terms of the IA, any decision which is taken by an immigration official which materially and adversely affects the rights of any person must be communicated to them together with the reasons for the decision, and inasmuch as the DDG's letter of rejection simply averred that the applications had been refused because the respondents had failed to produce 'adequate proof', and was not accompanied by any supporting facts or reasons, it did not comply with the Act. The respondents accordingly requested that 'adequate and proper' reasons for the DDG's decision be provided, without which they were unable to address the basis for the rejection by way of an appeal or review, and failing which they had instructions to approach the court for appropriate relief.

[13] The following day the appellants' attorney responded that 'the reason' (sic) for the rejection of Mr Dornseifer's application was clearly stated in the rejection letter from the DDG, ie that he had failed to produce 'adequate' proof that he met the prescribed financial requirements. This was obviously nothing more than a restatement, word for word, of what was set out in the original letter of rejection. The appellants' attorneys further advised that even if the 'reasons' given for the rejection of the application were 'inadequate, arbitrary or capricious' (sic), in the event that Mr Dornseifer was dissatisfied he was nonetheless obliged to exhaust his internal remedies of appeal or review and it would be 'improper' and premature for him to approach the court for any relief without doing so.

[14] This prompted yet another attempt by the Dornseifers, by way of a letter dated 12 April 2017, to obtain some clarity. After again setting out in some detail why they were of the view that Mr Dornseifer had complied with the prescribed financial requirements, they pointed out

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that the appellants' letter of rejection did not set out any basis for the bald statement that these requirements had not been met. They enquired whether the DDG was disputing the veracity of the supporting documents or the calculation of Mr Dornseifer's monthly retirement income, and again pointed out that without such information he was unable to exercise his rights to just administrative action in respect of the internal remedies available to him.

[15] The Dornseifers also reiterated their stance that the DDG's letter of 3 April 2017 did not meet the peremptory statutory requirement in relation to the furnishing of reasons and requested that such reasons be provided within one week, ie by 19 April 2017, in order to enable them to prepare a review or appeal, failing which they gave notice that they intended to approach the court for an order reviewing and setting aside the rejection and substituting it with an order in their favour. In the penultimate paragraph of their letter the Dornseifers stated that they were of the view that a failure to provide reasons as required would constitute grounds for an exemption from the requirement, in terms of PAJA, [6] that they exhaust their internal remedies.

[16] A similarly worded plea for reasons to be supplied on behalf of the Links was also sent to the appellants on the same date. Predictably, there was no response to this letter either. Instead, by way of a letter dated 21 April 2017 the DG informed Mrs Dornseifer that her application for permanent residence had also been rejected. In her case, reasons were provided. In this regard the DG said that it had been 'discovered' during the processing of...