Why we are writing about this now
Our appeals desk is currently seeing a familiar cluster of refusals.
Work visa applications refused because the Department “could not verify the applicant’s employment”, where the application was accompanied by a complete Managed Integrity Evaluation verification. Spousal and relative’s visa applications refused because an official “was unable to reach” the spouse or the sponsor by telephone. Business visa applications refused in wording lifted straight from the empowering provision, disclosing nothing about what was considered or what was found wanting.
The context is not incidental. On 30 March 2026 the Minister issued Immigration Directive No. 7 of 2026, extending the concession for foreign nationals affected by delayed processing of waiver, visa and appeal applications until 30 June 2027. That is a fifteen month extension, where the Department has historically granted three to six months at a time. It is welcome relief for lawfully present applicants, and we have used it extensively for clients who needed to travel. But it is also the Department’s own admission, in its own instrument, that it cannot presently decide applications within a reasonable time.
We have been here before. During the height of the earlier backlog, the same pressure produced the same result: large volumes of refusals issued at speed, disposing of files rather than deciding them. Link was decided against precisely that background, and it is the answer to it.
The case in brief
Two German married couples, the Links and the Dornseifers, applied for permanent residence in January and June 2015 respectively. Mr Dornseifer applied in the retired person category under section 27(e) of the Immigration Act; the spouses applied in the spousal category under section 26(b). Both couples had committed substantially to South Africa, the Links having invested approximately R9 million in a property in Paarl and shipped their household effects and animals from Germany.
What followed is worth setting out plainly, because it is the reason the Court reacted as it did.
The applications drew no response for nearly two years. Letters of demand from attorneys were ignored. Applications to compel a decision produced court orders by agreement, which were also ignored. A contempt application followed, resulting in the Director-General being declared in contempt and ordered to purge it within five days, with costs on the attorney and client scale.
Only then did decisions emerge. The Deputy Director-General wrote to Mr Link and Mr Dornseifer in identically worded letters stating that they had failed to produce “adequate proof” of the prescribed minimum monthly retirement income. No supporting facts were given. The applicants were told they had ten working days to appeal.
The difficulty for the Department was that both men had filed comprehensive proof. Mr Link had disclosed a combined monthly retirement income of R75 516.40 against a prescribed threshold of R37 000, supported by bank statements, deeds registry certificates, employer letters and lease agreements. Mr Dornseifer had disclosed R39 342.90, similarly documented. Repeated written requests asking whether it was the authenticity of the documents or the calculation of the income that was in dispute went unanswered. The Department’s response was to restate the original wording and to insist that the applicants were nevertheless obliged to exhaust their internal remedies before approaching a court.
The court a quo reviewed and set aside the refusals and ordered the permits to be issued. The Department appealed. A full bench comprising Sher J, Goliath DJP and Gamble J dismissed the appeal with costs on 17 October 2019. The judgment is reported at 2020 (2) SA 192 (WCC).
What the Court held
- Reasons must explain, not merely conclude.
This is the heart of the judgment. The Court held that reasons need not be set out in minute detail, but must at least be intelligible and informative. The decision maker must explain the decision in a way that enables the affected person to understand why it went against them, and to determine whether it rested on an incorrect factual premise or an error of law. Merely setting out the decision maker’s conclusions will not suffice. The decision maker must set out an understanding of the applicable law, the findings of fact on which the conclusion rests, and the reasoning process connecting them. This must be expressed in clear and unambiguous language, and not in vague generalities or in the formal terms of the applicable legislation.
Measured against that standard, the Court found that stating an application had failed for want of “adequate proof” was, at best, a conclusion couched in the statutory wording, and was not a reason at all. Ignoring two subsequent requests for clarity, the Court said, was contemptuous.
- Without adequate reasons, there is nothing to appeal internally.
This is the holding with the greatest practical consequence. Section 8(4) of the Immigration Act confers a right of review or appeal to the Director-General against a decision “as contemplated in terms of subsection (3)”. Section 8(3) requires that a decision materially and adversely affecting rights be communicated together with the reasons for it.
Reading the two together purposively, the Court held that a decision “as contemplated” in section 8(3) means a decision accompanied by adequate reasons. Where no adequate reasons are given, there is no section 8(3) decision capable of internal review or appeal, and the applicant is under no obligation to exhaust internal remedies. To hold otherwise, the Court said, would stultify the entire internal process, because an applicant cannot motivate against reasoning he has never seen, and the Director-General cannot meaningfully reconsider a decision that was never explained. The inevitable outcome would be a foregone reaffirmation of the original refusal.
- There is a structural gap where the Director-General decides at first instance.
The Court identified a defect in section 8 that remains widely overlooked. Section 8(4) provides for appeal to the Director-General against a decision of a subordinate functionary. Section 8(6) provides for appeal to the Minister, but only against a decision of the Director-General “as contemplated in terms of section 8(5)”, that is, a decision taken on appeal or review under subsection (4), which is itself dependent on subsection (3).
The consequence is that where the Director-General takes the decision at first instance, no internal remedy exists at all. The Director-General cannot hear an appeal against his own decision, and the ministerial route is never engaged because there is no subsection (5) decision to appeal from. Establishing which functionary signed the refusal is therefore not a matter of form. It determines the whole procedural route.
- There is a limit, and it must be respected.
The Court expressly cautioned that its interpretation is not a licence for dissatisfied applicants to rush to court on an assertion that reasons were inadequate. Where adequate reasons were not furnished at the time of the decision, the aggrieved party is expected to formally request them under section 5 of PAJA, as was done in Link, and will not be permitted to approach a court without having done so. Only where that request produces inadequate reasons or no reasons may exemption from exhaustion be sought, and exemption remains a matter to be decided on the facts of each case.
- In the alternative, exceptional circumstances justified exemption.
Even assuming internal remedies existed, the Court held that exemption was warranted in the interests of justice under section 7(2) of PAJA. An internal appeal would have been futile, because the applicants could not know what further proof to place before the official. The treatment they had received over two years weighed heavily. And because adequate reasons had been requested and refused, section 5(3) of PAJA operated to presume, absent contrary evidence, that the refusals were taken without good reason.
- Substitution, not remittal.
Applying Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (5) SA 245 (CC), the Court held that the outcome was a foregone conclusion on the papers, that no residual discretion or policy question was in play, that no further factual or technical enquiry was needed, and that remitting the matter would have been an unnecessary waste of time and resources exposing the applicants to further frustration of their rights. The order that the permits be issued was upheld.
Why the judgment fits the current pattern so closely
Link was decided on facts that map almost exactly onto the refusals now in circulation.
A refusal stating that employment “could not be verified”, where an MIE verification was filed with the application, is the same defect in a different category. It is a conclusion in statutory dress. It does not disclose whether the verification was received, read, doubted or considered insufficient. It leaves the applicant unable to identify what to fix, which is the precise deprivation the reasons requirement exists to prevent.
A refusal founded on an unanswered telephone call is worse, because it adds a further problem. The Department has generated adverse material through an enquiry of its own devising, attached decisive weight to it, and never disclosed it to the applicant before deciding. Neither the Act nor the Regulations prescribe telephonic contact as a condition of a valid application, and a single unanswered call cannot rationally sustain a finding that a marriage is not genuine or that a sponsorship is not authentic.
And a refusal that recites the empowering provision and adds nothing is the fact pattern of Link itself.
Practical points for clients and referring advisers
The ten working day clock runs from receipt. An application under section 8(4) must be lodged within ten working days of notification. That period is frequently lost while the applicant is still trying to work out what the refusal means.
Request reasons formally, and in writing. This is not a formality and Link makes it a precondition of any later approach to court. A properly framed request under section 5 of PAJA either produces reasons capable of being answered, which strengthens the appeal, or produces nothing, which activates the section 5(3) presumption. Both outcomes improve the client’s position.
Identify the signatory. If the Director-General signed the refusal at first instance, the internal route may not exist at all.
Preserve everything. The correspondence trail is what proves futility. In Link the Department filed no answering affidavit and was bound to the applicants’ version.
Backlog is not a defence. Section 33 of the Constitution contains no internal limitation for periods of institutional strain, and PAJA contains no reduced standard for high volume adjudication. Directive No. 7 of 2026 addresses the consequences of delay. It does not lower the standard the eventual decision must meet, and a directive issued under the Regulations cannot suspend PAJA in any event.
How we can assist
Strategies Migration Services South Africa advises corporate and individual clients on visa and permanent residence appeals, ministerial representations under section 8(6) of the Immigration Act, and PAJA review proceedings in the High Court. If you have received a refusal that does not explain itself, the position is very often better than it appears.
To discuss a refused application, contact us at info@immigrationspecialists.co.za.