Kuhudzai v The Minister of Home Affairs

• Jurisdiction: South Africa
• Judge: Sher J
• Judgment Date: 24 August 2018
• Docket Number: 11034/16
• Court: Western Cape Division, Cape Town
• Hearing Date: 24 August 2018
• Citation: 2018 JDR 1398 (WCC)

Sher, J:

1.

The applicants, who are husband and wife, seek to review and set aside a decision by the Minister of Home Affairs which was taken in August 2016, whereby he refused their application to be granted permanent residence (by way of an exemption from the prescribed requirements) in terms of the provisions of s 31(2)(b) and (c) of the Immigration Act. [1]

2.

This was the second such application to the Minister which the first applicant had brought. He first applied unsuccessfully during 2011, and the application which is the subject of the current proceedings was submitted to the Minister in March 2015.

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There were lengthy delays on the part of the Minister in rendering a decision in both of the applications. In regard to the one which is the subject of these proceedings the Minister's decision was only made after first applicant launched an application to compel.

Background

3.

The applicants are Zimbabwean nationals. First applicant was the first to arrive in 2004 together with his twin brother, after they were each awarded a 'prestigious' presidential scholarship to study at the University of Fort Hare. First applicant's brother enrolled for a degree in commerce, and first applicant for a degree in law. Both worked hard and were successful in their studies. First applicant's brother was granted a permanent residence permit on 24 July 2015.

4.

First applicant was awarded the LLB degree in May 2008. If one has regard for the transcript of his academic record it appears that he was an exceptional student, obtaining some 14 distinctions during the course of his study.

5.

After graduating first applicant secured an internship at the South African Human Rights Commission where he was employed until 2009 when he joined PASOP (People Against Suffering Oppression and Poverty) an NGO which deals with the rights of immigrants and refugees, as an advocacy officer. In November 2009 he was employed for a few months by the Zimbabwean consulate in Johannesburg on a 'special dispensation' project for Zimbabwean immigrants, which sought (in conjunction with SA authorities) to regularize the status of Zimbabweans whose entry or residence in SA was not in accordance with legal requirements. He thereafter secured articles with a firm of attorneys in Cape Town, which he completed in 2013. Between 2012 and 2014 he successfully sat for the attorneys' admission examinations, and completed the Practical Legal Training ('PLT') Course. At the time when he lodged the instant application with the Minister he was employed by ARESTA (The Agency for Refugee Education, Skills Training & Advocacy) an NGO similarly engaged in the field of refugee assistance, as a Refugee Rights Education and Advocacy Programme Manager. He said in his affidavit in support of his application that although he had fully complied with the

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academic, professional and practical requirements for admission as an attorney, as a matter of law he could only be admitted if he had obtained citizenship or permanent residence. [2]

6.

As is evident not only from his employment with entities which deal with asylum-seekers, refugees and migrants but also from the number of papers he has presented to governmental entities including the Department and the Parliamentary Portfolio Committee for Home Affairs, which deal with draft legislation and issues pertaining to such persons, first applicant is clearly passionate about their rights. It is also abundantly clear that he has developed considerable expertise and specialized knowledge in such areas of law. As such, he said in his application to the Minister that upon his admission as an attorney he would like to run a law clinic for refugees and asylum-seekers.

7.

Second applicant obtained a BA degree from the University of Zimbabwe in 2005 and is qualified as a linguistics teacher. In 2011 she obtained a Diploma in Humanitarian Aid and Project Management. She married first applicant in Zimbabwe by customary rites on 20 September 2014. She entered the country on a temporary visitor's visa, which she subsequently requested be extended so that she could continue to remain with first applicant, but her application was refused. At the time when she jointly made application for permanent residence with first applicant she was awaiting the outcome of an appeal in respect of the extension she had requested.

The Minister's decision/non-decision

8.

The Director-General of the Department acknowledged receipt of the application in respect of both applicants, which was lodged in March 2015, by way of a letter dated 19 May 2015, in which he informed them that it was under consideration. He

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said that inasmuch as the decision was one which could only be taken by the Minister 'in person' it was a 'lengthy procedure'.

9.

Some 8 months later a decision had not yet been arrived at, and following further enquiry the Director-General informed the applicants in a letter dated 8 January 2016 that the Department was 'still busy to consider' (sic) granting them permanent residence.

10.

The Minister's failure to attend to the matter for over a year eventually prompted the applicants to make application to this Court on 23 June 2016 for an Order compelling him to make a decision. The application was enrolled for hearing on 11 August 2016. The day before it was due to be heard the Minister communicated his decision to the applicants' attorney by way of a letter [3] which (with my emphasis in bold where indicated) reads as follows:

"APPLICATION IN TERMS OF SECTION 31(2)(b) OF THE IMMIGRATION ACT, 2002 (ACT NO 13 OF 2002): REQUEST FOR EXEMPTION: MR ALEX TAPHIWA KUHUDZAI

After having considered all the information at my disposal, I have decided not to grant your client the rights of permanent residence through exemption in terms of section 31(2)(b) of the immigration Act 13 of 2002. Section 31(2)(b) enables the Minister to grant exemption to a foreigner if good cause exists to justify such a decision. After consultations between the Department of Home Affairs, the Department of Justice and Constitutional Development and the Law Society of South Africa, I already took a decision on 9 September 2014 that exemption will not be granted to any foreigner for the purpose of practising as an attorney or advocate in South Africa, which is a requirement in the Attorneys Act and Advocates Act, respectively.

The Department of Justice and Constitutional Development made it explicitly clear that it did not intend to amend these 2 pieces of legislation and the Law Society of South Africa maintains that there is an annual oversupply of law graduates without sufficient employment opportunities for them in the labour market.

Section 22 of the Constitution of the Republic of South Africa accords the right to choose a trade, occupation or profession freely (sic), only to a South African citizen. The practice of a trade, occupation or profession may be regulated by law and this is precisely what the Attorneys Act and Advocates Act aim to do. My obligation as the Minister of Home Affairs is first and foremost to consider the right of employment of South African citizens before extending this right to a foreigner. Your client's case is not unique. When I took the policy decision on 9 September 2014, there were 30 cases before me of foreigners who studied law at South African Universities and who requested exemption in order to practice their profession as lawyers. Since then many more came with the same request and, as with Mr Kuhudzai they were informed by the Department of my

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decision. I do not think it is fair of Mr Kuhudzai to compare his case to that of his brother. Mr Alex Takura Kuhudzai opted to study a BCom degree in Accounting, a field which does have a demand for employees other than South African citizens and permanent residents. After completion of his studies, he applied for and was granted a general work visa. After 5 years continuous work visa status he formally applied for, complied with all the prescribed requirements, and was issued with a permanent residence permit.

Your client chose his field of study to be law, which is a field that has no demand for employees other than South African citizens and permanent residents. The field of law he chose freely and with no guarantee whatsoever that he would be granted the necessary residential status in South Africa to practice his profession. Having said this, I want to put it on record that Mr Kuhudzai had (sic) not been prejudiced from earning an income to sustain his family. The Department had issued him with a General Work Visa which is valid until 15 July 2019 to work as a Refugee Right Educator with Arista and, provided that his future work visa...