THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE NO: 576/06

In the matter between :

DIRECTOR GENERAL : DEPARTMENT OF HOME
AFFAIRS
First Appellant
MINISTER OF HOME AFFAIRS
Second Appellant

and

MAVERICKS REVUE CC
Respondent
___________________________________________________________________________
Before:
HOWIE P, NUGENT, PONNAN, MLAMBO JJA & HURT AJA
Heard:
15 NOVEMBER 2007
Delivered:
28 NOVEMBER 2007
Summary:
Immigration Act and Regulations – corporate permit – whether
work permit for a corporate worker attracts the fee payable for a
general work permit contemplated by s 19 – discretion to require
security for repatriation – whether properly exercised.

Neutral citation:
This judgment may be referred to as DG Department of Home
Affairs v Mavericks Revue CC [2007] SCA 149 (RSA)
___________________________________________________________________________

NUGENT JA

NUGENT JA:
[1] The skills shortage, so it seems, extends to exotic dancing. The respondent
wishes to bring 70 exotic dancers to this country, mainly from Russia and
Ukraine, to work at its revue bar in Cape Town. It has permission from the
Department of Home Affairs to do so in the form of a ‘corporate permit’ issued
to it under the Immigration Act 13 of 2002. But the first secretary in the consular
section of the embassy in Moscow, Ms Loving, has declined to issue work
permits to the dancers unless each pays a fee of R1 520 and provides a cash
deposit of US $2 000 as security for repatriation. The High Court at Cape Town
(Fourie J) set aside the imposition of the two conditions and the appellants now
appeal against its order with the leave of that court.

[2] The entry of foreigners to South Africa is regulated by the Immigration
Act, the Immigration Regulations,1 and the Regulations on Fees.2 That statutory
regime, so far as it is material to the present case, is rather confusing, and
perhaps it is even defective.

[3] A foreigner who is not the holder of a permanent residence permit is
permitted to enter and sojourn in South Africa only if he or she is in possession
of a valid ‘temporary residence permit’ (ss 9(4) and 10(1) of the Act). A
‘temporary residence permit’ is defined to mean ‘a temporary residence permit
contemplated in section 10’. Section 10(2) provides, in turn, that upon
application in the prescribed manner and form, ‘one of the temporary residence
permits contemplated in sections 11 to 23 may be issued to a foreigner.’
[4] Sections 11 to 23 provide for the issue of various kinds of permit: a
visitor’s permit, a study permit, a work permit, and so on. Each of those permits,

1 Published under Government Notice R. 616 in Government Gazette 27725 of 27 June 2005.
2 Published under Government Notice R. 615 in Government Gazette 27725 of 27 June 2005.

except one, purports to be a residence permit as ordinarily understood. The
exception is the permit provided for in s 21 – called a ‘corporate permit’ – which
is not a residence permit at all.

[5] A ‘corporate permit’ is applied for by a ‘corporate applicant’ (‘a juristic
person that conducts business, not-for-gain, agricultural or commercial activities
within the Republic’3) and permits the corporate applicant to ‘employ foreigners
who may conduct work for such a corporate applicant’ (s 21(1)). What has given
rise to the difficulty in this case is that it is not clear how the foreigners
concerned are to acquire the right to enter and sojourn in this country.

[6] Reg. 18(6) envisages that a ‘person employed by the holder of a corporate
permit’ will apply for a ‘work permit’ and it lays down various requirements that
such an application must meet. Yet the Act does not create a category of work
permit that is expressly apposite. Ms Loving and the department take the view
that the ‘work permit’ referred to in that regulation is a work permit envisaged
by s 19 of the Act. Because the schedule to the Regulations on Fees stipulates a
fee of R1 520 for an application for a work permit that is issued under s 19 Ms
Loving has insisted on that fee being paid.

[7] The court below held that the work permit envisaged by reg. 18(6) is not a
work permit contemplated by s 19 of the Act but is one that is sui generis (by
which I understand the court to mean that it is not one of the permits provided
for in ss 11 to 23). Since no fee for such a permit is stipulated in the Regulations
on Fees it held that no fee is payable.

3 Definition of ‘corporate applicant’ in s 1.

[8] There is some support for the department’s view in the definition section
of the Immigration Regulations. That defines a ‘work permit’ to mean ‘the
relevant permit contemplated in s 19 of the Act.’ The trouble is that none of the
work permits provided for in s 19 of the Act are relevant to corporate workers.
There are also other clear indications that the work permit envisaged by
reg. 18(6) is not such a permit.

[9] Section 19 provides for the issue of four kinds of work permit – a ‘quota
work permit’, a ‘general work permit’, an ‘exceptional skills work permit’ and
an ‘intra-company transfer work permit’. I need deal only with a ‘general work
permit’ because it is accepted by the appellant that the other three permits have
no application in this case.

[10] A general work permit may be issued to a foreigner only if, amongst other
things, ‘the prospective employer satisfies the Director-General that despite
diligent search he or she has been unable to employ a person in the Republic
with qualifications or skills and experience equivalent to those of the applicant’
(s 19(2)). That is not a requirement for the issue of a corporate permit. It follows
that a foreigner who is permitted to be employed under a corporate permit will
not necessarily qualify for a general work permit under s 19, which is the first
indication that reg. 18(6) refers to a work permit of a different kind. The second
indication, as pointed out by the court below, is that the criteria to be met when
applying for a s 19 work permit (those criteria are contained in reg. 16) are
different to those that must be met when applying for a work permit under
reg. 18(6) from which it is apparent that the regulations have different permits in
mind. The third indication, also mentioned by the court below, is that s 21(5)
distinguishes corporate workers from workers who hold s 19 work permits, in so

far as it provides that ‘the holder of a corporate permit may also employ
foreigners in terms of s 19’. And finally, if it was intended that corporate
workers would qualify for and be issued with general work permits there would
be no need for corporate permits to be issued at all.

[11] I agree with the court below that the work permit that is envisaged by
reg. 18(6) could not have been intended to be a work permit issued under s 19 of
the Act.  I do not think we need to decide whether it is a ‘sui generis work
permit’ that is permitted implicitly by the Act – it might also be that there is
simply an inadvertent lacuna in the Act. It is sufficient for present purposes to
say that an application for a work permit envisaged by reg. 18(6) does not attract
any fee stipulated in the Regulations on Fees and the finding of the court below
on that issue cannot be faulted.

[12] Ms Loving’s insistence upon payment of a repatriation deposit in respect
of each of the dancers has its foundation in reg. 18(6)(b)(iii). That subsection
provides that an application for a work permit to be issued to a person employed
by the holder of a corporate permit must comply with various requirements that
include
‘at the discretion of the Director-General, proof of a valid return air ticket, a deposit or a
written undertaking by the employer accepting responsibility for the costs related to the
deportation of the applicant and his or her dependant family members, should it become
necessary…’

[13] That regulation needs to be seen in the context of the corporate permits to
which it relates. When the Director-General is asked to issue a corporate permit
he or she is required by s 21(2) to ‘determine the maximum number of

employees to be employed in terms of a corporate permit’ after having
considered, amongst other things
‘the financial guarantees posted in the prescribed amount and form by the corporate applicant
to defray deportation and other costs should the corporate permit be withdrawn, or certain
foreigners fail to leave the Republic when no longer subject to the corporate permit.’

[14] Although it is not expressly so stated I think it is implicit that the posting
of financial guarantees is a pre-requisite for the issuing of a corporate permit.
Reg. 18(5) provides that those financial guarantees may, at the discretion of the
Director-General, take either of two forms: a ‘deposit in respect of each
corporate worker’, or a ‘written undertaking [by the corporate employer] in lieu
of the deposit’. In the present case the respondent furnished written undertakings
that I must assume were acceptable to the department.

[15] Ms Loving and the department understand reg. 18(6)(b)(iii) to mean that
an applicant for a work permit may be required to furnish an additional
repatriation deposit or written undertaking hence the insistence in this case upon
deposits of US $2 000. I find it rather anomalous that a duplication of security
for repatriation may be required when a work permit is applied for (duplicating
the security that was provided by the employer when obtaining a corporate
permit) and perhaps the regulation is open to another interpretation. But that is
not a matter that we need to decide. I have assumed for present purposes that the
regulation does allow for further security to be demanded at the discretion of the
Director-General.

[16] It is common cause that the discretion to require payment of a repatriation
deposit was delegated to Ms Loving by the Director-General. It is alleged by the
respondent that Ms Loving was instructed by the department to ask for a

repatriation deposit in all cases of this kind and that she simply executed that
instruction and exercised no discretion at all. That allegation was met with a bald
denial by the Office Manager of the office of the Department of Home Affairs at
Cape Town (the deponent to the appellants’ answering affidavit) without any
supporting evidence of Ms Loving. I do not think a bald denial by a stranger with
no apparent knowledge of the facts can carry any weight. The court below found
that by merely executing an instruction Ms Loving failed to exercise any
discretion at all with the result that her decision was unlawful and in my view
that finding was correct.

[17] The court below set aside the imposition by Ms Loving of each of the
conditions and also declared that ‘the applicants for work permits to be
employed by [the present respondent]…are not required to pay the fee of R1 520
prescribed in respect of a work permit issued in terms of section 19 of the [Act]
or any fee at all’ but it gave no directions relating to the fate of the applications.
It was submitted on behalf of the appellants that if we dismiss the appeal we
should remit the matter to the Director-General for reconsideration of all the
applications for work permits by foreign workers recruited by the respondent
from abroad and give appropriate directions in that regard. I see no reason to
make such an order. The conditions having been set aside the applications will
necessarily require reconsideration in accordance with law and we need give no
directions as to what that entails.

[18] The appeal is dismissed with costs that are to include the costs of two
counsel where two counsel were employed.

____________________
R.W. NUGENT
JUDGE OF APPEAL

CONCUR:

HOWIE P)
PONNAN JA)
MLAMBO JA)
HURT AJA)
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 November 2007
Status:
Immediate

DIRECTOR GENERAL : DEPARTMENT OF HOME AFFAIRS & ANOTHER v
MAVERICKS REVUE CC

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

* * *

The Supreme Court of Appeal (SCA) today (28 November 2007) held that the Immigration
Act and Regulations did not allow the Department of Home Affairs to demand a fee, and
require additional security for repatriation, to be paid and provided respectively by a
foreign worker who had been permitted to be employed under a ‘corporate permit’.
(Director General: Department of Home Affairs v Mavericks Revue CC.)

Mavericks Revue CC had been permitted by the Department of Home Affairs to employ 70
exotic dancers mainly from Russia and the Ukraine.  When they applied for work permits
at the consulate in Moscow they were told that they must each pay a fee for the work
permit and deposit US $2 000 as security for repatriation.

The High Court held that they were not obliged to pay the fee or to provide the security.
The SCA dismissed an appeal against that decision.