A court ruling has reminded South Africa’s Department of Home Affairs that immigration decisions must rest on lawful authority, a point with consequences well beyond the two foreign applicants who brought the case. The Western Cape High Court ordered the department to reconsider a German woman’s business visa application after finding that an immigration officer at the South African embassy in Berlin had refused it without holding the necessary power to do so.
Judge Phillipa Susan Van Zyl set aside the purported decision rejecting Johanna Kerstin Schinker’s application and directed the Director-General of Home Affairs to reconsider it within 20 days.
Schinker intends to establish and operate a guesthouse in South Africa. She applied for a business visa under section 15 of the Immigration Act, but the embassy in Berlin rejected her application in a notice dated November 3, 2025. The refusal cited alleged shortcomings: no proof that at least 60% of the business’s employees would be South African citizens or permanent residents, no evidence of registration with the South African Revenue Service and the Companies and Intellectual Property Commission, and no proof of her investment.
The court, however, found a more fundamental problem. The Immigration Act empowers the Director-General, specifically, to issue or refuse business visas. Those powers may be delegated, yet Home Affairs provided no evidence that such authority had been given to the immigration officer who signed the refusal notice. Van Zyl noted that an official could assess an application against documentary requirements and request additional information, but could not refuse a business visa without the necessary statutory authority. The court declared the purported decision invalid and set it aside.
Home Affairs had argued that Schinker should first have exhausted internal remedies by requesting a review from the Director-General and then approaching the Minister before going to court. Van Zyl rejected that argument, finding that the internal review process presupposed a valid decision by an authorised official. Here, there was no valid decision capable of being reviewed.
Meanwhile, the judgment also addressed a separate application by French national Thibaud Luciani, whose application for permanent residence had been rejected. Luciani, the son of Gautier Luciani, a South African permanent resident, had applied under section 27(g) of the Immigration Act, which covers applicants who are relatives of South African citizens or permanent residents within the first degree of kinship. The Director-General rejected the application, citing his failure to submit a valid relative’s visa.
Van Zyl found that the refusal was materially influenced by an error of law. The requirements for permanent residence under section 27(g) did not include the additional requirement relied upon by Home Affairs, and the regulations cited by the department did not impose such a requirement for applications under that section. The court set aside the refusal and ordered the Director-General to reconsider Luciani’s application within 20 days.
Home Affairs and the minister were ordered to pay the costs of both applications. Whether the department will now clarify how visa powers are delegated to its officials abroad remains an open question for future applicants.