The Director-General, Department of Home Affairs and another v Islam and others

Mr Nurul Islam, a Bangladeshi citizen, was validly issued a spousal visa (TRC 1510538) on 2 February 2016 based on his marriage to a South African citizen, Mrs Wageema Islam. On 3 March 2016, he temporarily left South Africa to visit his ailing mother. An immigration officer noted "refer on arrival" on his passport upon departure. On 10 June 2016, the Department of Home Affairs (DHA) issued an alert regarding fraudulently produced visa labels with control numbers B0028XXX and B0029XXX. On 30 June 2016, when Mr Islam returned to Cape Town International Airport from Dubai, he presented a passport endorsed with a visa bearing reference number TRV1689435 and control number B00286091 (one of the fraudulent numbers). This was not the visa originally issued to him. DHA refused him entry under section 29(1)(f) of the Immigration Act 13 of 2002, deeming him a prohibited person for possessing a fraudulent visa. He was informed of his right to request ministerial review. Mrs Islam launched urgent proceedings seeking to allow Mr Islam entry into South Africa pending review. An initial ex parte order by Samela J was set aside the same day after the appellants raised concerns about non-disclosure. The Islams then launched fresh proceedings before Salie-Hlophe J, who granted an interim interdict directing the appellants to permit Mr Islam to enter and remain in South Africa and to re-issue his spousal visa within 21 days.

• Whether the interim interdict granted by the high court was appealable
• Whether the requirements for granting an interim interdict were satisfied
• Whether Mr Islam established a prima facie right to entry into South Africa despite being found in possession of a fraudulent visa
• Whether the high court had authority to order the Department of Home Affairs to allow entry and re-issue a visa in contravention of section 29(1)(f) of the Immigration Act
• Whether the high court's order violated the doctrine of separation of powers

The appeal was upheld with no order as to costs. The order of the high court was set aside and replaced with an order dismissing the application with no order as to costs.

A foreigner found in possession of a fraudulent visa in breach of section 29(1)(f) of the Immigration Act 13 of 2002 is deemed a prohibited person and does not qualify for a port of entry visa or admission into South Africa, even if previously issued with a valid visa. Courts have no authority to order the Department of Home Affairs to admit such a person or re-issue a visa, as such an order directly contravenes statutory provisions and violates the separation of powers doctrine. An interim interdict against the exercise of statutory powers may only be granted in exceptional cases where a strong case is made out. When considering the balance of convenience in such applications, courts must carefully probe whether the restraining order will intrude into the exclusive terrain of another branch of government and have proper regard to "separation of powers harm". An applicant seeking an interim interdict must establish a prima facie right, which cannot exist where the undisputed evidence establishes possession of a fraudulent visa rendering the applicant a prohibited person under the Immigration Act.

The Court noted that had the high court's order been implemented, it would ironically have rendered Mr Islam an illegal foreigner (a foreigner in the Republic in contravention of the Act), giving rise to negative consequences including the Director-General's obligation to deport him and exposure to criminal liability involving imprisonment or a fine. The Court also observed that the ministerial review had failed and was announced shortly before the high court hearing, yet the Islams took no steps to launch judicial review as undertaken in their notice of motion, with Mr Islam simply returning to his country of origin. The Court rightly commended the appellants for not pressing for costs both in the high court and on appeal, given the nature of the proceedings, and determined that the Islams should not be burdened with costs. The judgment reinforced the warning from National Treasury v Opposition to Urban Tolling Alliance regarding the Constitutional imperative for courts to refrain from entering the exclusive terrain of the Executive and Legislative branches unless mandated by the Constitution, and the need to consider probable impact on constitutional and statutory powers and duties of state functionaries when granting restraining orders.

This case is significant for establishing clear principles regarding: (1) the appealability of interim interdicts, confirming that courts may dispense with traditional requirements where interests of justice require; (2) the strict limitations on courts granting interim relief against exercise of statutory powers, particularly in immigration matters; (3) the reinforcement that possession of a fraudulent visa under section 29(1)(f) of the Immigration Act deprives a foreigner of any right to admission, even if previously issued a valid visa; (4) the importance of separation of powers principles in restraining courts from intruding into the executive terrain by ordering immigration officials to admit persons or issue visas contrary to statutory provisions; and (5) the need for courts to consider "separation of powers harm" when conducting balance of convenience enquiries in applications for interim relief against state functionaries. The judgment serves as an important reminder of judicial restraint in immigration enforcement matters and the State's legitimate interest in border security and immigration system integrity.