THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case no: 1383/2016
In the matter between:

THE MINISTER OF HOME AFFAIRS
FIRST APPELLANT

THE DIRECTOR-GENERAL, HOME AFFAIRS
SECOND APPELLANT

and

TASHRIQ AHMED
FIRST RESPONDENT

ARIFA MUSADDIK FAHME
SECOND RESPONDENT

KUZIKESA JULES VALERY SWINDA
THIRD RESPONDENT

JABBAR AHMED
FOURTH RESPONDENT

Neutral citation:  The Minister of Home Affairs v Ahmed (1383/2016) [2017] ZASCA
123 (26 September 2017)

Bench:
Ponnan, Leach and Majiedt JJA and Plasket and Schippers AJJA

Heard:
28 August 2017

Delivered:
26 September 2017

Summary:
Asylum seekers in terms of the Refugees Act 130 of 1998 may not, while
they are in the country, apply for a visa in terms of s 10(2) of the Immigration Act 13 of
2002, read with regulation 9(2) of the Immigration Regulations.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Sher AJ sitting as court of first
instance):

The appeal is upheld.
The order of the court below is set aside and replaced by the following order:
‘The application is dismissed.’
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Leach and Majiedt JJA and Plasket and Schippers AJJA concurring):

[1] The question raised by this appeal is whether holders of asylum seeker permits
in terms of s 22 of the Refugees Act 130 of 1998 (the RA) may, whilst they are within
this country, apply for a visa in terms of the Immigration Act 13 of 2002 (the IA). The
court a quo (Western Cape Division, Cape Town) (per Sher AJ) held that they are
entitled to do so.1 The appellants – the Minister of Home Affairs (the Minister) and
Director General of that Department (the DG) (collectively referred to as the DHA)
appeal that decision with the leave of Sher AJ.

[2] The second, third and fourth respondents are in South Africa as asylum seekers.
Each applied for a visa in terms of the IA. The DHA rejected those applications
ostensibly in line with departmental policy. The policy was set out in Immigration Policy

1 The judgment of the court a quo is reported sub nom Ahmed & others v Minister of Home Affairs &
another [2016] ZAWCHC 123; [2016] 4 All SA 864 (WCC).

Directive 21 of 2015 issued by the DG on 3 February 2016 (Directive 21). Aggrieved by
that refusal, the three respondents and their attorney (the first respondent) applied on
21 April 2016 to the court a quo for urgent relief. The application succeeded before the
court a quo and on 21 September 2016 the following order issued:
‘(i)
Immigration Directive 21 of 2015, which was issued by the Director-General of the
Department of Home Affairs on 3 February 2016, is declared to be inconsistent with the
Constitution of the Republic of South Africa 1996 and invalid, and is set aside.
(ii)
Second respondent is directed to permit the second applicant to submit an application
for a visitor’s visa in terms of s 11(b)(iv) of the Immigration Act, no. 13 of 2002, within 15 days
from date of this Order.
(iii)
Second respondent is directed to consider third applicant’s appeal against the refusal of
his application for a critical skills visa, as rejected by him on 4 January 2016, in the light of this
judgment and to make a decision in the appeal within 15 days of the date of this order.
(iv)
Second respondent is directed to consider fourth applicant’s appeal against the refusal
of his application for a critical skills visa, as rejected by him on 6 October 2015, in the light of
this judgment and to make a decision in the appeal within 15 days of the date of this order.
(v)
Second respondent shall be liable for applicants’ costs of suit, including the costs of two
counsel where so employed.’

[3] According to the first respondent, who deposed to the founding affidavit in
support of the relief sought in the court a quo, during September 2003 the Cape Town
office of the Legal Resources Centre brought an application against the DHA on behalf
of thirteen asylum seekers. That matter was settled and an order, which came to be
known as the ‘Dabone Order’,2 issued by agreement between the parties. Following
upon the Dabone Order, the DG issued a directive, namely Circular 10 of 2008. Circular
10 provided that ‘asylum seekers in possession of a permit issued in terms of s 22 of
the [RA] can apply for one of the temporary residence permits contemplated in the [IA],
as well as permanent residence in terms of section 26 or 27 of the [IA].’

2 The first applicant in that matter was Mr Moustafa Dabone.

[4] On 3 February 2016 the DG issued a new directive – Directive 21 – which is
headed: ‘Withdrawal of Circular 10 of 2008 confirming the 11 November 2003 Dabone
Court Order’ and provides in material part as follows:
‘It is the considered view of the Department that no change of condition or status should be
premised on the provisions of the Immigration Act for a holder of an asylum seeker permit
whose claim to asylum has not been formally recognized by [the Standing Committee for
Refugee Affairs].’
The Directive concluded with these words:
‘In view of the above provisions I wish to advise all Immigration Officials that Departmental
Circular 10 of 2008 has fallen away since the 26th of May 2014 and is hereby officially
withdrawn. . . . All applications for change of status from asylum seeker permit to temporary
residence visa which are still pending in the system should be processed as per this directive
regardless of the date of application.’

[5] Such details as can be gleaned from the papers pertaining to each of the second,
third and fourth respondents are somewhat sketchy. The second respondent, Ms Arifa
Fahme, is married to Mohamed Fahme. Both are Indian citizens. Mr Fahme is the
holder of a work permit pursuant to which he is employed as the manager of a
supermarket. Ms Fahme is the holder of an asylum seeker permit in terms of s 22 of the
RA. She first entered the country on 3 June 2009. Her permit was extended on 12
occasions and eventually expired in 2016. Mr Fahme entered the Republic of South
Africa in 2015. Ms Fahme applied for a visitor’s visa in terms of s 11 of the IA. The
DHA’s agent, VFS Global, refused to accept the application. It apparently did so on the
strength of Directive 21. The third respondent, Mr Kuzikesa Swinda, is a citizen of the
Democratic Republic of Congo. His details were first captured on 19 April 2010 by an
Refugee Reception Officer (RRO). His permit was extended on 13 occasions and
eventually expired on 1 August 2016. In the interim, Mr Swinda applied for a critical
skills visa in terms of s 19 of the IA. The critical skill he is said to possess is that of an IT
Security Specialist. On 4 January 2016 his application for a critical skills visa was
rejected. The fourth respondent, Mr Jabbar Ahmed, is a Pakistani national. His details
were first captured by an RRO on 26 September 2014. His permit was extended twice
and expired on 26 October 2015. Like the third respondent, he too made an application

for a critical skills visa - in his case as a sheep shearer. On 6 October 2015 his
application was also rejected.

[6] The written reasons given by the DHA for rejecting the applications of the third
and fourth respondents for critical skills visas were in identical terms, namely:
‘The applicant cannot be granted a temporary residence visa (trv) until their asylum application
has been finalized and their asylum claims have been proven to be true as currently the
application has been referred to rab [note: Refugees Appeal Board] as the asylum claims were
found to be unfounded and thereby rejected. The applicant has been granted an opportunity to
exhaust his or her rights of appeal and sec 26(2) of the Refugees Act No 130, 1998 states that
the appeal board may after hearing an appeal confirm, set aside or substitute any decision
taken by a refugee status determination officer, as an adjudicator in permitting a decision to
grant trv would not be correct/premature as the applicant’s asylum status has yet to be finalized
(which could result in confirmation, setting aside or substitution of the current rejection), such
decision will then provide direction in the processing of a trv.’
Both Mr Swinda and Mr Ahmed lodged internal appeals with the DHA against those
decisions. Those appeals have been held in abeyance because, so the contention
goes, if the argument advanced on behalf of the DHA carries the day, then all three
respondents could not even have applied for the visas in question whilst in this country,
much less require the DHA to consider and determine them.

[7] In my view, the court a quo’s conclusions appear to rest on an erroneous
interpretation of the IA. Accordingly, the IA is where one must start. Section 10 of that
Act, headed ‘Visas to temporarily sojourn in Republic’, provides:
‘(1)
Upon admission, a foreigner,3 who is not a holder of a permanent residence permit, may
enter and sojourn in the Republic only if in possession of a visa issued by the Director-General
for a prescribed period.
(2)
Subject to this Act, upon application in person and in the prescribed manner, a foreigner
may be issued one of the following visas for purposes of –
. . .
(l)
applying for asylum as contemplated in section 23.’4

3 A foreigner is defined as an individual who is not a citizen.

Thus, the regulation of refugees starts, ironically, with s 23 of the IA, which provides:
‘(1)
The Director-General may, subject to the prescribed procedure under which an asylum
transit visa may be granted, issue an asylum transit visa to a person who at a port of entry
claims to be an asylum seeker, valid for a period of five days only, to travel to the nearest
Refugee Reception Office in order to apply for asylum.
(2)
Despite anything contained in any other law, when the visa contemplated in subsection
(1) expires before the holder reports in person at a Refugee Reception Office in order to apply
for asylum in terms of s 21 of the Refugees Act, 1998 (Act 130 of 1998), the holder of that visa
shall become an illegal foreigner and be dealt with in accordance with this Act.’

[8] Refugees entering the Republic of South Africa are not automatically recognized
as such. In order to have their status recognized they must fulfil the requirements for
asylum in terms of the RA. The RA distinguishes between asylum seekers and
refugees.5 As Minister of Home Affairs v Somali Association of SA Eastern Cape &
another [2015] ZASCA 35; 2015 (3) SA 545 para 3 observed:
‘It is thus important to understand how asylum is sought and conferred in terms of our law.
According to s 21 of the [RA],6 every person who wishes to obtain asylum must apply in person
to a Refugee Reception Officer (the Officer) at any Refugee Reception Office (RRO). To that
end, the Officer must ensure that the application form is properly completed and where
necessary assist the applicant in that regard. The Officer may conduct such enquiry as is
deemed necessary in order to verify the information furnished by the applicant and, thereafter
submit the application together with such information as may have been obtained to a Refugee

4 The other types of visas contemplated by s 10(2) of the IA are:
(a) transit through the Republic as contemplated in section 10B;
(b) a visit as contemplated in section 11;
(c) study as contemplated in section 13;
(d) conducting activities in the Republic in terms of an international agreement to which the Republic is a
party as contemplated in section 14;
(e) establishing or investing in a business as contemplated in section 15;
(f) working as a crew member of a conveyance in the Republic as contemplated in section 16;
(g) obtaining medical treatment as contemplated in section 17;
(h) staying with a relative as contemplated in section 18;
(i) working as contemplated in section 19 or 21;
(j) retirement as contemplated in section 20;
(k) an exchange program as contemplated in section 22.
5 The RA defines an ‘asylum seeker’ as ‘a person who is seeking recognition as a refugee in the Republic’
and a ‘refugee’ as ‘a person who has been granted asylum in terms of this Act’.
6 Section 21 of the RA, headed ‘Application for asylum’, reads:
‘(1) An application for asylum must be made in person in accordance with the prescribed procedures to a
Refugee Reception Officer at any Refugee Reception Office.’

Status Determination Officer (RSDO). Pending the outcome of that application the Officer must,
in terms of s 22 of the [RA],7 issue such applicant with an asylum seeker permit allowing him or
her to sojourn in the Republic temporarily. Until the issuance of a s 22 permit (also described as
an asylum seeker permit), such person is considered an illegal foreigner and subject to
apprehension, detention and deportation in terms of the [IA]. . . . An asylum seeker permit is
thus essential to enable an asylum seeker to live, work and function in South Africa prior to the
determination of his or her status.’
Once asylum is granted, a refugee has a range of rights including the entitlement to
apply in terms of s 27(c) of the RA for an immigration permit.8

[9] Section 10(2) of the IA expressly envisages an ‘application in person and in the
prescribed manner’. As to the prescribed manner: it is to the Immigration Regulations9
that one must look. Regulations 9(1) and 9(2) prescribe the manner in which most visa
applications must be made. They read:
‘(1)
An application for any visa referred to in section 11 up to and including sections 20 and
22 of the Act shall be made on Form 8 illustrated in Annexure A together with all supporting
documents and accompanied by . . . 10

7 Section 22 of the RA, headed ‘Asylum seeker permit’, reads:
‘(1) The Refugee Reception Officer must, pending the outcome of an application in terms of section 21(1),
issue to the applicant an asylum seeker permit in the prescribed form allowing the applicant to sojourn in
the Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not
in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on
the permit.
(2)  Upon the issue of a permit in terms of subsection (1), any permit issued to the applicant in terms of
the Aliens Control Act, 1991 [Immigration Act], become  null and void, and must forthwith be returned to
the Director-General for cancellation.’
8 Section 27(c) provides: ‘A refugee is entitled to apply for an immigration permit in terms of the Aliens
Control Act, 1991,8 after five years’ continuous residence in the Republic from the date on which he or
she was granted asylum, if the Standing Committee certifies that he or she will remain a refugee
indefinitely.’
9  GN R413, GG 37679, 22 May 2014.
10 The documents envisaged by Regulation 9(1) are:
‘(a) a valid passport in respect of each applicant;
(b) a yellow fever vaccination certificate if that person travelled or intends travelling from or transiting
through a yellow fever endemic area: Provided that the certificate shall not be required where that person
travelled or intends travelling in direct transit through such area;
(c) a medical and radiological report in respect of each applicant, excluding applicants for the visa
contemplated in s 11(1)(a) of the Act: Provided that a radiological report shall not be required in respect of
children under the age of 12 years or pregnant women;
(d) in respect of dependent children accompanying the applicant or joining the applicant in the Republic,
proof of parental responsibilities and rights or written consent in the form of an affidavit from the other
parent or legal guardian, as the case may be;
(e) in respect of a spouse accompanying the applicant or joining the applicant in the Republic, a copy of a

(2)
Any applicant for any visa referred to in subregulation (1) must submit his or her
application in person to –
(a)
any foreign mission of the Republic where the applicant is ordinarily resident or holds
citizenship; or
(b)
any mission of the Republic that may from time to time be designated by the Director-
General to receive applications in respect of any country in which a mission of the Republic has
not been established.’
Importantly, in terms of s 10(8) of the IA, an application for a change in status does not
provide a status and does not entitle the applicant to any benefit under the Act, except
for those explicitly set out in the Act, or to sojourn in the Republic pending the decision
in respect of that application.

[10] The general rule therefore is that an application for a visas by a foreigner must
be made abroad and not in South Africa. That general rule applies to the respondents’
visa applications for a visitor’s visa (in the case of the second respondent) in terms of s
11 and a work visa (in the case of each of the third and fourth respondents) in terms of s
19 of the IA. It follows that the respondents could not lawfully apply for either a visitor’s
or work visa in South Africa. Applications for visas of that kind could only have been
made abroad.

[11] The main exception to that general rule is to be found in s 10(6) of the IA, which
allows certain foreigners, who are in South Africa, to apply for a change in their status.
In that regard s 10(6) provides:
‘(a)
Subject to this Act, a foreigner, other than the holder of a visitor’s or medical treatment
visa, may apply to the Director-General in the prescribed manner to change his or her status or
terms and conditions attached to his or her visa, or both such status and terms and conditions,
as the case may be, while in the Republic.
(b)
An application for a change of status attached to a visitor’s or medical treatment visa
shall not be made by the visa holder while in the Republic, except in exceptional circumstances
as prescribed.’

marriage certificate or proof of a relationship as contemplated in regulation 3; and
(f) payment of the applicable application fee.’

‘Status’, according to s 1(1) of the IA, means ‘the status of the person as determined by
the relevant visa or permanent residence permit granted to a person in terms of this
Act’. And that section defines a ‘visa’ to mean visas issued in terms of the IA.
Regulation 9(5) elaborates:
‘(5)
A foreigner who is in the Republic and applies for a change of status or terms and
conditions relating to his or her visa shall –
(a)
submit his or her application, on Form 9 illustrated in Annexure A, no less than 60 days
prior to the expiry date of his or her visa; and
(b)
provide proof that he or she has been admitted lawfully into the Republic,
Provided that no person holding a visitor’s or medical treatment visa may apply for a change of
status to his or her visa while in the Republic, unless exceptional circumstances set out in
subregulation (9) exist.’

[12] These provisions create an exception to the general rule that visa applications
must be made abroad. They also make clear that the exception only applies to the
holders of certain categories of visa issued in terms of the IA. Section 10(6)(a) provides
in the first place for an application for a change in ‘status’ and in the second for a
change in the ‘terms and conditions attached to his or her visa’. By definition both are
confined to those who are here under visas issued in terms of the IA. The definition of
‘status’ makes it clear that it relates to a person’s status under a visa or permanent
residence permit issued in terms of the IA. They do not apply to asylum seekers, who
do not have any status under the IA and are in the country pursuant to asylum seeker
permits issued in terms of the RA. Both s 10(6)(a) and regulation 9(5) exclude the
holders of visitor’s and medical treatment visas from this exemption. Holders of those
visas ordinarily may not apply for a change of status in South Africa. The general rule,
that applications for visas must be made abroad, prevails in their case. It would thus be
most anomalous not to allow them the benefit of the exemption but to extend it to
asylum seekers who enjoy no status under the IA at all.

[13] When asylum seekers arrive at a South African border post, they are given an
asylum transit visa for only five days to allow them to apply for asylum at the nearest
RRO. They thereafter become subject to the RA and do not enjoy any status under the

IA. Section 22(2) of the RA puts this beyond doubt. It states that, upon the issue of any
asylum seeker permit to an applicant, ‘any permit issued to the applicant in terms of the
[IA], becomes null and void, and must forthwith be returned to the Director-General for
cancellation.’ This provision militates against any suggestion that an asylum seeker
enjoys any status under the IA.

[14] Asylum seekers are thus bound by the general rule laid down by s 10(2) of the IA
read with regulation 9(2) of the Immigration Regulations that applications for visas must
be made abroad. The respondents could not lawfully apply for visitor’s and work visas
within South Africa. The DHA therefore correctly declined their applications. The court a
quo found that nothing prevented the two Acts being read together such that an asylum
seeker or refugee could make application for the full range of visas and permits
provided for by the Immigration Act. In that, the court overlooked this general rule.

[15] One final aspect remains: The court a quo took the view that the Minister may, in
terms of s 31(2)(c) of the IA, for good cause waive any prescribed requirement. It
opined ‘there was no suggestion by the [DHA] that any of the requirements necessary to
obtain either a visitor’s visa . . . or a so-called critical skills visa . . . could not be so
waived by the Minister if he or she deemed it appropriate’. In terms of s 31(2)(c) ‘upon
application, the Minister may under terms and conditions determined by him or her for
good cause, waive any prescribed requirement or form. This provision does not avail
the respondents because they did not apply to the Minister to waive the requirement
that applications for visas be made abroad. If they had made such an application, and
the Minister had refused it, their remedy would have been an application for review. The
Minister’s power to waive is thus of no assistance to them in this case.

[16] It follows that the appeal must succeed. The appellants did not seek costs either
in this court or the one below.

[17] In the result:
1.
The appeal is upheld.
2.
The order of the court below is set aside and replaced by the following order:
‘The application is dismissed.’

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For the Appellants:

W H Trengrove SC (with him K Pillay and A Nacerodien)

Instructed by:

State Attorney, Cape Town

State Attorney, Bloemfontein

For the Respondents:

A Katz SC (with him A Brink)

Instructed by:

Kassell Sklaar Cohen Attorneys, Cape Town

Symington & De Kok Attorneys, Bloemfontein
SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
26 September 2017

STATUS
Immediate

Minister of Home Affairs & another v Ahmed & others (1383/2016) [2017] ZASCA 123
(26 September 2017)

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal (SCA) upheld an appeal brought by the appellants, the Minister
of Home Affairs and the Director-General of that Department (collectively referred to as the DHA)
against a judgment of the Western Cape Division of the High Court, Cape Town (court a quo). The
issue was whether holders of asylum seeker permits  in terms of s 22 of the Refugees Act 130 of
1998 (the RA) may, whilst they are within this country, apply for a visa in terms of the Immigration Act
13 of 2002 (the IA). The court below held that they are entitled to do so.

The second, third and fourth respondents are in South Africa as asylum seekers in terms of s22 of the
RA. The second respondent first entered the country on 3 June 2009. Her permit was extended on 12
occasions and eventually expired in 2016. She then applied for a visitor’s visa in terms of s11 of the
IA but the DHA’s agent, VFS Global, refused to accept the application. The third and fourth
respondents applied for a critical skills visa in terms of s19 of the IA but the DHA rejected their
applications.

The DHA refused and rejected all three applications on the strength of a departmental policy which
was set out in an Immigration Policy Directive 21 of 2015 issued by the Director-General of Home
Affairs on 3 February 2016. The departmental policy states that asylum seekers do not qualify for
change of condition or status within the Republic and that such application must be made abroad.

In the court a quo, it was held that asylum seekers are entitled to apply for visitor’s and work visas
while in South Africa. It based its finding on, amongst other things, that there was nothing in the IA
and the RA that would ‘make it inherently inimical or offensive to their legislative scheme, for a failed
asylum seeker to apply for temporary residence and work rights under the Immigration Act.’ The court
below thus held the departmental policy to be inconsistent with the Constitution and invalid, and set it
aside. It directed that all three respondents should be permitted to submit their applications for visas
in terms of the IA.

On appeal, the SCA held that asylum seekers are bound by the general rule laid down by s 10(2) of
the IA read with regulation 9(2) of the Immigration Regulations that applications for visas must be
made abroad. The respondents could not lawfully apply for visitor’s and work visas within South
Africa. The DHA therefore correctly declined their applications. The SCA further stated that the court a
quo’s finding that nothing prevented the two Acts being read together such that an asylum seeker or
refugee could make application for the full range of visas and permits provided for by the Immigration
Act, overlooked this general rule.

As a result, the appeal was upheld.