Director General: Department of Home Affairs and Another v Mavericks Revue CC

Mavericks Revue CC, a revue bar operator in Cape Town, obtained a corporate permit from the Department of Home Affairs under the Immigration Act 13 of 2002 to bring 70 exotic dancers from Russia and Ukraine to work in South Africa. The respondent had permission to employ these foreign workers through the corporate permit. However, Ms Loving, first secretary in the consular section of the South African embassy in Moscow, declined to issue work permits to the dancers unless each paid a fee of R1 520 and provided a cash deposit of US $2 000 as security for repatriation. The respondent challenged these conditions in the High Court at Cape Town, which set aside the imposition of both conditions. The Department of Home Affairs and the Minister of Home Affairs appealed.

• Whether a work permit for a corporate worker attracts the fee of R1 520 payable for a general work permit contemplated by section 19 of the Immigration Act 13 of 2002
• Whether the work permit envisaged by Regulation 18(6) is a work permit under section 19 of the Immigration Act
• Whether the discretion to require security for repatriation under Regulation 18(6)(b)(iii) was properly exercised by Ms Loving

The appeal was dismissed with costs, including costs of two counsel where two counsel were employed. The imposition of the R1 520 fee and the US $2 000 repatriation deposit was set aside. The applications for work permits would require reconsideration in accordance with law.

The binding legal principles established are: (1) A work permit envisaged by Regulation 18(6) for persons employed by holders of corporate permits under the Immigration Act 13 of 2002 is not a general work permit contemplated by section 19 of the Act, and therefore does not attract the fee stipulated for section 19 work permits; (2) Where a statutory regulation confers discretion on a decision-maker, that discretion must be actually exercised; a decision-maker who merely follows blanket instructions without considering individual circumstances fails to exercise discretion and acts unlawfully; (3) A bald denial by a person with no apparent knowledge of the relevant facts carries no evidentiary weight in contradicting factual allegations supported by the context.

The Court made several non-binding observations: (1) The statutory regime governing foreign entry to South Africa under the Immigration Act and regulations is 'rather confusing, and perhaps it is even defective'; (2) The Court found it 'rather anomalous' that duplication of security for repatriation may be required when a work permit is applied for (duplicating security provided when obtaining the corporate permit), and noted the regulation might be open to another interpretation, though this issue did not require determination; (3) The Court stated it need not decide whether the work permit under Regulation 18(6) is a 'sui generis work permit' permitted implicitly by the Act, or whether there is simply an inadvertent lacuna in the Act; (4) The Court noted it was implicit, though not expressly stated, that posting financial guarantees is a prerequisite for issuing a corporate permit.

This case clarifies the relationship between corporate permits and work permits under the Immigration Act 13 of 2002 and its regulations. It established that work permits for corporate workers are distinct from general work permits under section 19, and different fees and requirements apply. The case is significant for administrative law principles regarding the proper exercise of delegated discretion, confirming that decision-makers must actually exercise discretion rather than merely follow blanket instructions. It highlights interpretational challenges in immigration legislation where the statutory framework may contain lacunae or inconsistencies. The case provides important guidance for employers seeking to bring foreign workers to South Africa under corporate permits and for immigration officials processing such applications.