Bihombel and Another v Minister of Home Affairs and Another

The Applicants, a married couple from the Democratic Republic of Congo (DRC), were declared prohibited persons in terms of section 29(1)(f) of the Immigration Act 13 of 2002 for being found in possession of fraudulent visas/permits. The First Applicant had used an agent to obtain a work visa in 2016, which later turned out to be fraudulent. She cooperated with police in the DRC leading to the agent's arrest. She subsequently obtained a new visa in 2019 but was refused entry at OR Tambo International Airport. The Second Applicant obtained a permanent residence permit through a friend/agent, which was later found to be fraudulent. Both Applicants were declared prohibited persons without being given prior notice, a hearing, or reasons. They appealed internally to the Director-General and then to the Minister, but their appeals were dismissed. They then sought judicial review under PAJA.

• Whether the initial decisions of Department of Home Affairs officials declaring the Applicants prohibited persons under section 29(1)(f) of the Immigration Act constitute administrative action under PAJA.
• Whether the Applicants were entitled to procedural fairness (prior notice, hearing, and reasons) before being declared prohibited persons.
• Whether section 29(1)(f) applies to persons who are innocent of complicity in the fraud relating to the visa/permit found in their possession.
• Whether the appeal decisions of the Director-General and Minister should be set aside as a consequence of the initial decisions being invalid.

The application was granted. All impugned decisions (the initial prohibitions, the DG's rejections of section 29(2) applications, and the Minister's dismissals of appeals) were reviewed and set aside. A declaratory order was made that neither the First nor Second Applicant is a prohibited person under section 29(1)(f) of the Act. The Respondents were ordered to pay the costs jointly and severally.

1. A decision by Department of Home Affairs officials to declare a person a prohibited person under section 29(1)(f) of the Immigration Act 13 of 2002 constitutes administrative action as defined in PAJA and must comply with the procedural fairness requirements of sections 3(2) and 5 of PAJA, including adequate notice, a reasonable opportunity to make representations, and adequate reasons. 2. Section 29(1)(f) cannot apply to an innocent party who has been found in possession of a fraudulent visa—there must be evidence of complicity or knowledge of the fraud, which requires a proper investigation by the Department before making such a declaration.

The court expressed disquiet that there does not appear to be a prescribed notice in terms of section 29(1)(f) notifying persons that they have been declared prohibited or of their appeal rights under section 8 of the Act. The court also noted that prohibition is a 'devastatingly punitive sanction' which renders a person unemployable and unable to remain in South Africa, and emphasized that such punishment imposed contrary to PAJA is 'patently unjust and unfair'.

This case confirms that section 29(1)(f) declarations under the Immigration Act are administrative actions subject to PAJA's procedural fairness requirements, aligning with the Constitutional Court's approach in Koyabe. It reinforces the principle established in Najjembe that section 29(1)(f) does not apply to innocent persons unaware of and not complicit in the fraud relating to a visa or permit found in their possession. The judgment emphasises that the Department must conduct proper investigations before declaring persons prohibited and cannot merely assume complicity. It underscores that the right to appeal does not cure procedural unfairness at first instance.