Home Affairs’ Rejection of Foreigners’ Applications Costs Millions in Litigation

The South African Supreme Court of Appeal recently threw out the department’s defense of its actions, describing them as ‘unconscionable … deliberately obstructive and dilatory’.

Delays and wrongful rejections by certain officials in SA’s home affairs department are resulting in unnecessary court cases that waste resources and cost the country millions.

As specialists in helping foreign clients to secure the necessary visas and permits to live and work in SA, De Saude Attorneys has seen more than its fair share of court appearances. Frustratingly, most of these should not be necessary at all.

Most court cases stem from the wrongful refusal of applications or delays in processing applications, which can push back outcomes for years. Appeals against wrongful refusal can take years more to process, leaving applicants without status in the interim and driving them to court.

These lawsuits are costly for everyone concerned since home affairs must allocate its already stretched resources to go to court. The cost per case can run into hundreds of thousands of rand, and with home affairs defending a reported average of 50 cases per week, the total costs to the state are staggering.

Challenging this situation, De Saude Attorneys and Visa One went to the Western Cape High Court and Supreme Court of Appeal earlier this year, arguing that “the department has, for years now, failed at a structural level to determine applications made to it in any reasonable or lawful time period, including … 473 applications the applicants now bring before this court”.

We noted that even simple applications to the department can take years to be resolved, if they are resolved at all. We therefore sought to compel the department to comply with its obligations in terms of the constitution and applicable legislation.

Describing the department’s stance on litigation as “deliberately obstructive and dilatory”, the Supreme Court of Appeal said its approach was “unconscionable, especially coming from a state department”. The department’s appeal against the high court finding in favor of De Saude and Visa One was dismissed with costs.

September 19, 2017. Pinetown Home Affairs . Picture: THULI DLAMINI

While this was a noteworthy victory, the challenge will remain as long as the department continues to operate in such a way that litigation becomes the only way for applicants to get a fair hearing.

The principles of “batho pele” (people first) require government officials to be polite, open and transparent and deliver good service to the public, and there are many dedicated home affairs officials who take this to heart. Unfortunately, some adopt an obstructionist attitude and do not appear to focus on public service, or indeed the country’s economic development.

According to recent procedures implemented by VFS on instruction of home affairs, foreigners may not file more than two appeal applications (regardless of whether the first two refusals are wrong) and may not file any appeal application later than the 10 working days provided (regardless of the reasons for the late filing). In practice, this still means that if an applicant has received two refusals — even if these refusals were incorrect through no fault of their own — they have no further avenue for appeal.

Normally, if circumstances beyond the applicant’s control have precluded them from filing their application within the 10 days allowed, condonation for late filing would be requested and would be granted where such good cause could be proved.

For example, where an applicant has fallen seriously ill during the preparation of his appeal application or lapsed into a coma immediately upon taking receipt of the negative decision against him, they cannot reasonably be expected to personally submit an appeal application within the 10 days allowed for such submission. But the department’s new policy could mean refusal, even when good cause can be proved.

The applicant against whom a wrongful decision has been taken twice is left with no recourse but to approach the court to have the matter lawfully adjudicated, and the department’s own position appears to be that these applicants should approach a court for assistance. This appears to encourage litigation and will no doubt result in an additional onslaught of court cases involving the department, to the severe detriment of all parties involved.

An already overwhelmed, understaffed and underfunded department should not invite legal action against itself in this manner, particularly when this could be easily avoided by allowing the adjudicator to exercise his or her authority to grant condonation on a case-by-case basis.


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Opinion: Home Affairs Needs Attention

Various ward councillors and officials in the Randburg area held a site visit at the Randburg Department of Home Affairs on 8 April.

There they met with the management of the department to discuss the current state of the facilities.

In the past year, ward councillors worked hard to improve the parking area for visitors to the department. “There is still no proper waiting area for those who are coming to apply for their IDs, birth and marriage certificates,” said Ward 104 councillor Mike Wood.

Constituency Head Kate Lorimer said, “This particular home affairs covers a vast area of Johannesburg. We are all aware of how low the morale of the staff members are at the Randburg Home Affairs, and it tends to provide an unhappy experience for those coming to apply for various documents. There is an important project that needs to be undertaken by the government to upgrade this very busy Home Affairs.”

Wood continued, “In ward 104, I and my fellow ward 102 councillor David Potter are working hard to get this facility sorted out. Home Affairs have been in the press lately for all the wrong reasons, and this one is a prime example. The toilets and the kitchens are in a diabolical state, and the Department of Home Affairs needs to step up to the plate. The working conditions for staff leave a lot to be desired.”

Wood stated that the main aim of the visit was to see how facilities could be upgraded for both staff and visitors to make sure that the experience of coming to home affairs is a pleasant one for all.

Wood also said that there is a budget to improve both the Roodepoort and Randburg departments, but nothing has come to fruition as of yet.

“We need to start with improving the basics, for instance, waiting areas and abolition facilities. The services themselves are good, so good in fact that more and more people from the surrounding areas are making use of this home affairs and not ones closer to them,” Wood added.

During the meeting with home affairs officials, any plans to upgrade the facilities would take place during this financial year.

“Unfortunately, as ward councillors in this regard, we don’t have the power to physically handle the matter ourselves, and all we can do is push the Department of Home Affairs itself to take action.”

Member of the Provincial Legislature in Gauteng Makashule Gana added, “Another important issue to raise is the fact there are over 3 500 identity documents waiting to be collected. With huge elections just around the corner, we urge the community to collect their IDs to make sure they can vote on voting day.”


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Home Affairs Department to Review Residency Status of Foreign Pastors

Home Affairs Minister Siyabonga Cwele says his department is considering a review of their status as permanent residents.

The Department of Home Affairs is set to take a hard look at high-flying pastors who’ve moved to South Africa to run lucrative ministries.

Home Affairs Minister Siyabonga Cwele says his department is considering a review of their status as permanent residents.

So-called “miracle” pastors are also facing closer scrutiny from the South African Revenue Service, while the African National Congress has called for rogue religious leaders to be investigated by the CRL Commission.

Cwele told Parliament’s home affairs committee that becoming a permanent resident of South Africa involves certain conditions that must be met.

“There are many of these things in the public [eye], like these priests who come from foreign countries to do work here. We’ve asked the department to review their status. Because if you come here, you say you’re coming to run a factory – there’s no factory called a church.”

The minister says it’s not about being against people from other countries.

“Quite clearly, we are not xenophobic but if you come to our country under certain conditions you must stick to those conditions.”


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MPs Concerned About Home Affairs’ Contract for Visas

The Portfolio Committee on Home Affairs wants the renewal of a contract to outsource the processing of visas reviewed, likening it to the controversial Cash Paymaster Services (CPS) contract.

The committee recently resolved to write to Minister of Home Affairs Siyabonga Cwele to review the contract with VFS Global.

The committee heard that the contract with VFS Global was renewed for two years in December, without it going through the open tender procurement process. The department initially contracted VFS Global in 2010.

Chief director of immigration services at the department Richard Stolz said the extension of the contract “was legally provided for”. He said there would have been an “immense” reputational risk to the department if there was a discontinuity in their operating model.

But MPs are highly critical of the deal.

DA MP Haniff Hoosen said it destroyed job creation in South Africa because the deal meant that several local companies providing visa services had to close their doors.

ANC MP and chairperson of the Portfolio Committee on Tourism Lusizo Sharon Makhubela-Mashele, who also attended the meeting, likened it to the South Africa Social Security Agency’s (Sassa’s) controversial dealings with CPS.

Committee chairperson Hlomani Chauke also subscribed to this idea.

“The extension creates a perception of another Cash Paymaster Services (CPS), which was the only service provider at the South Africa Social Security Agency said to have the capacity to render services. It is even more concerning that the department has extended the scope of work of VFS to establish services in countries it did not have previously,” Chauke said in a statement released after the meeting.

Several MPs said it seemed like the law was amended to deliberately give VFS Global a monopoly.

“Maybe, if we can’t conclude these issues, we must refer it to the Zondo commission [into state capture]. It is part of state capture,” Chauke said.

“Deliberately, you have amended legislation to create this monopoly. It killed all the small players.”

After being castigated by the committee, deputy director general of immigration services Jackie Mckay said: “We note all of the issues that are raised here.”

He acknowledged that it was not the first time that the committee had raised it.

“We take note of it.”

He said before the contract expired, they had started with an open tender process, but in April last year received a legal opinion to not follow such a process.

“That threw a spanner in the works,” Mckay said.

“We have no interest in who is delivering the service, as long as the service is delivered to us.”

Mckay said “serious, serious capacity problems” had been the bane of his existence.

“We just don’t have the staff.”

He said they had approached Treasury on several occasions, to no avail. This did little to appease the committee.

In his statement, Chauke said the committee would like to hear from Cwele about the possibility of going out on an open tender process and his plans to build capacity within the department to quickly process visa applications.

Cwele will be expected to respond to the committee within a week to ensure that the matter is dealt with before Parliament rises.

“While the committee acknowledges that Parliament has no right to inform the department on whom to contract for services, it would be a dereliction of its duty if it did not highlight cases where the department is deliberately breaking its own rules and guidelines,” read the statement.

“It is even more concerning that capacity in key tourism markets, such as Nigeria and India, is lacking, leading to few processed applications impacting on the numbers of tourists coming into the country,” Chauke said.

VFS Global describes itself as the “world’s largest outsourcing and technology services specialist for governments and diplomatic missions worldwide” on its website.

“The company manages the administrative and non-judgmental tasks related to visa, passport, identity management and other citizen services for its client governments. This enables them to focus entirely on the critical task of assessment.”

The company’s headquarters are in Dubai, its parentage is Swiss and it is a portfolio company of EQT, a global private equity firm headquartered in Stockholm, Sweden.

Last week, the committee also asked Cwele to investigate the department’s contract for the automated biometric identification system with technology company EOH.


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Richards Bay Home Affairs Faces More Complaints

The Richards Bay Department of Home Affairs has once again come under the spotlight from disgruntled members of the public, who say the systems are constantly off-line, whether during load-shedding or not.

People wanting to make use of the department’s services, including obtaining ID books or smart cards, birth and death certificates or passports, are left standing in the late summer sun when the systems are down, sometimes with no time frame as to when they will be online again.

One member of the public said this issue has been ongoing for the past two weeks.

‘Many people do not have the money to make the trip numerous times.’

The department acknowledged that load-shedding has contributed to some downtime experienced at the Richards Bay branch, but that this is not continual, nor has the system been offline for two weeks.

‘Apart from that, there is a problem with the central IT server at the department’s Pietermaritzburg head office.

The spokesperson said there is nothing that each individual home affairs branch can do to rectify the problems with the central server, but that the Richards Bay technicians are hassling the technicians in Pietermaritzburg in their bid for feedback.

Five things to do to make your trip to Home Affairs easier:

1. Phone the branch beforehand to ensure it is operational

2. Find out the quietest time of day or quietest day of the week

3. Do as much of your application online as possible

4. Apply for your document in good time

5. Ensure you arrive at the office early in the morning


For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, Remuneration, and Expat Tax needs, email, or call us on +27 21 763 4240.

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