- A German national challenged the refusal of her business visa after an immigration officer at the South African embassy in Berlin decided without any proof that they had been given the authority to do so.
- A French national also challenged the refusal of his permanent residence application after Home Affairs demanded a valid relative’s visa, even though this was not actually required under the relevant section of the law.
- The Western Cape High Court overturned both decisions and ordered the Director-General to look at the applications again within 20 days.
Two foreign nationals have successfully challenged Home Affairs after the department turned down their immigration applications. In one case, the decision-maker did not have the right authority. In the other, the decision was based on a legal requirement that does not exist.
The first case involved a German national who wanted permission to start a guesthouse business in South Africa. The second case was about a French national applying for permanent residence through his father, who already has permanent residence in the country.
Judge P S van Zyl gave his judgment on 10 November 2026, setting aside both decisions and ordering the Director-General of Home Affairs to look at the applications again within 20 days.
Immigration officer refused business visa without authority
Johanna Kerstin Schinker, who is from Germany, applied for a business visa under section 15 of the Immigration Act 13 of 2002. She wanted to start and run a guesthouse in South Africa.
On 3 November 2025, the South African embassy in Berlin told her that her application had been refused. The refusal notice was signed by an immigration officer.
They said she had failed to meet three requirements of the Immigration Regulations. Home Affairs claimed she did not provide proof that at least 60 percent of her business’s employees would be South African citizens or permanent residents with permanent jobs. She was also accused of not submitting proof of registration with the South African Revenue Service, the Companies and Intellectual Property Commission, or the required evidence of her investment.
But Judge van Zyl found that section 15(1) of the Immigration Act says only the Director-General has the authority to approve or refuse business visa applications.
Although the Director-General can delegate this power to other officials, Home Affairs did not provide any proof that the immigration officer in Berlin had such authority.
The judge explained that an official could go through an application, point out any missing documents, and ask the applicant to provide them. But the final decision to turn down a business visa had to come from the Director-General or someone with officially delegated authority. So the refusal was not a valid decision under the Immigration Act. The judge declared it invalid and overturned it.
Permanent residence refused because of incorrect visa requirement
The second application was from Thibaud Luciani, a French national whose father, Gautier Luciani, is a permanent resident in South Africa.
Thibaud applied for permanent residence under Section 27(g) of the Immigration Act. This section allows someone to apply if they are a close relative within the first degree of kinship of a South African citizen or permanent resident.
The Director-General refused his application, saying Thibaud had not submitted a valid relative’s visa. Instead, he had handed in a visitor’s visa that expired on 2 January 2024. But Judge van Zyl found that Section 27(g) does not require someone in this situation to have a valid relative’s visa.
The only important requirement is that the applicant must be a close relative of a South African citizen or permanent resident. Home Affairs also tried to rely on Regulation 23(2)(k) during the court proceedings. But the judge rejected this argument because Regulation 23 only applies to applications made under Sections 25 and 26 of the Immigration Act, not Section 27.
The judge also noted that Thibaud had a valid visitor’s visa when he submitted his permanent residence application on 24 October 2023. Later, he held a relative’s visa valid from 9 October 2024 to 8 October 2026.
Judge van Zyl concluded that the Director-General’s refusal was influenced by a legal mistake. Because of this, the decision was reviewed and set aside.
Home Affairs could not rely on internal appeals
In both cases, Home Affairs argued that the applicants should have first used the internal review and appeal procedures under Section 8 of the Immigration Act, instead of going straight to the High Court. But Judge van Zyl found that these procedures did not apply to either application.
In Schinker’s case, there was no valid decision by someone with the right authority that could be reviewed internally. In Luciani’s case, the Director-General had made the original decision, so there was no internal appeal available under the Act.
The judge also referred to an earlier Full Court decision that confirmed there is no internal appeal to the Minister when the Director-General is the original decision-maker. The court ordered the Director-General to look at both applications again and make new decisions within 20 days of the order.
The Director-General and the Minister of Home Affairs were ordered to pay the legal costs for both applications together, including the legal fees for counsel at Scale B.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
