A foreign national and father of two’s honesty has caused him ongoing problems and legal fees.
For four years, he worked in the country with a fraudulent work visa, but the moment he reported the fraud to Home Affairs, rather than assisting him, he faced deportation.
The man, only identified as TC in a judgment delivered shortly before Christmas, told the Western Cape High Court that he had no idea that he was issued with a fraudulent visa. Being honest, he immediately reported it to the department.
This was the start of his uphill battle in a bid to obtain his work permit in a legal manner. The department time and again refused to issue him with a work permit and the man turned to the court in October last year in a bid for the department to reconsider his application.
The department, represented by the minister, during last year’s proceedings undertook to reconsider the matter within 40 days and to report back to the applicant.
The 40 days lapsed at the end of November, yet the applicant did not hear a word from the department. He subsequently turned to the court for an urgent order holding the minister in contempt of court.
He explained that while not having a legal working permit, he was unable to provide for his family.
The applicant said the department in October undertook to take another look at his application for a work permit. This undertaking was made an order of court, yet nothing was done by the department.
In his urgent application he asked that the department had to within a week reconsider his working visa. If this order was also ignored, the applicant said, he wanted the minister to come to the court to explain why he should not be held in contempt of court.
The applicant told the court that in 2016 he obtained a work permit through a third party in South Africa. In 2020 he became aware that his purported work permit was, in fact, fraudulent and that that third party defrauded him.
He immediately approached the Department of Home Affairs in good faith to have the situation rectified. The applicant voluntarily submitted the fraudulent visa to the department and asked for a lawful resolution of the matter.
In applying the provisions of the Immigration Act, the applicant was immediately prohibited from qualifying for a visa or admission into the republic because of him having a fraudulent permit. He was declared a prohibited person in the country.
He then applied to the department not to be declared a prohibited person, as he said these were special circumstances as he had fallen prey to fraud through no fault of his own. The director-general of the department rejected this application.
The applicant subsequently applied for the rejection to be reviewed.
The minister failed to adjudicate the applicant’s review application timeously. One year lapsed from the date of the application and up to launching the urgent application the department had remained mum on the subject.
One of the arguments forwarded on behalf of the department was that the October court order was never served on the minister. But Judge James Lekhuleni frowned upon this, as the minister, through his department, in fact agreed to that order (to reconsider the work permit).
“I find it strange and opportunistic to argue that the minister is not aware of this application. The October 2023 order was obtained by agreement with the minister. Before this application was instituted, there were several email exchanges between the officers representing the minister and the applicant’s attorneys. These officials were informed that the applicant intended to bring this application.”
The judge added that on the evidence placed before the court, there could be no doubt that the minister was in contempt of court.
He gave the minister 10 days to abide by last year`s court order. Judge Lekhuleni said if the minister did not comply, he faced the possibility of coming to court to explain why not