EFL South Africa NPC trading as 'Education South Africa' v Minister of Home Affairs and Others

The applicant, a non-profit organization representing English as a Foreign Language (EFL) providers, sought relief after its members faced obstacles in obtaining study visas for foreign students. The Immigration Regulations defined 'learning institution' narrowly, excluding the applicant's members. A previous settlement order (2016) allowed provisional registration with the Department of Higher Education and Training (DHET) based on Quality Council for Trades and Occupations (QCTO) accreditation, enabling study visas. However, a 2020 DHET communiqué changed this stance, indicating that QCTO-accredited providers could no longer register as private colleges unless they met Umalusi requirements. The applicant's provisional registration was set to expire on 31 December 2021, threatening their operations. The matter was heard urgently in November 2021, and an order was granted on 2 December 2021.

• Whether the applicant and its members had a legitimate expectation of continued provisional registration and recognition as 'learning institutions' based on prior conduct, representations, and the 2016 settlement order.
• Whether the respondents' change of policy via the 2020 communiqué was procedurally fair and lawful in light of existing court orders and settled expectations.

The court ordered that, pending final determination: (1) the Fifth and Sixth Respondents (DHET) renew/extend provisional registration of the applicant and its members provided they comply with existing terms; (2) the First, Second, and Fourth Respondents (Department of Home Affairs) consider study visa applications on their merits and accept the applicant and its members as 'learning institutions' while registered with DHET; (3) the Department of Home Affairs bring the order to the attention of visa adjudicators; and (4) the Tenth and Eleventh Respondents ensure the order is brought to the attention of foreign mission officials. Costs stood over for later determination.

Where a state organ has, through its conduct and a court-sanctioned settlement, induced a reasonable and legitimate expectation that certain administrative benefits will continue, it cannot unilaterally and without procedural fairness alter its position to the detriment of the party holding that expectation, particularly when no steps have been taken to vary or set aside the underlying court order.

The court expressed strong disapproval of the parties' attorneys for their 'diabolical handling' of the matter, including forgetting about the case after the 2021 order and misleading subsequent presiding officers about awaiting judgment.

This case underscores the binding nature of settlement orders and administrative representations on state organs, and the protection of legitimate expectations in South African administrative law. It highlights that government departments cannot unilaterally resile from agreements or policies that have induced reliance without following fair procedures or seeking variation of court orders.