A leaked internal document has cast new light on the shocking backlogs at the department of home affairs (DHA), which has fallen so far behind in processing temporary residence visa permit applications that it faces dire legal implications.
The memorandum, sent to the DHA by the state attorney’s office in Cape Town, was scathing in its assessment of a flood of lawsuits due to the department’s inability to issue permits and visas expeditiously.
It warned the backlog — now standing at 950,000 applications — had led to:
- A proliferation of class action lawsuits against home affairs, with cost orders;
- Applicants “jumping the queue” when the courts ordered their paperwork to be fast tracked, which thwarted the immigration process;
- National security risks, because vetting processes were being rushed by DHA officials who feared being found in contempt of court; and
- The blocking of skilled overseas applicants seeking employment in South Africa.
The memo was written by Shireen Karjiker, Dalphine Smith and Sachin-Lee Simpson from the state attorney’s office, who said there had been a flood of class action lawsuits that had enabled desperate visa applicants to jump the immigration queue.
Justice department spokesperson Kgalalelo Masibi, responding on behalf of the state attorney’s office, declined to offer substantive comment, citing attorney-client confidentiality. “Any communication not designated for public consumption is protected in terms of the Legal Practice Act and relevant confidential prescripts,” she said.
The DHA had not responded to requests for comment by the time of publication.
The memo, dated November 1 last year, said in part: “We are concerned that DHA’s inability to adjudicate permits is spawning litigation and escalating legal costs on a continuous basis. Also, the courts are granting substitution and usurping powers of the executive. These class actions place pressure on all involved — the state attorneys, DHA legal advisers [and] the line-function at permitting, and create further backlogs.
“The adjudicators do not have an opportunity to properly scrutinise and examine the applications, and permits are issued to people who should never have qualified.”
The memo, addressed to DHA deputy director of legal services Zanecebo Menze and legal representative Nkosinathi Makalima, cited a “scathing” 2017 Supreme Court of Appeal (SCA) ruling related to the failure to adjudicate permits expeditiously.
Adjudicators did not have an opportunity to verify liabilities of the applicants and, in an effort to avert a contempt situation, issued permits to foreigners even though there was crucial information [missing]. This is a serious error and security risk.
— State attorney's office memo
The court dismissed an appeal by the DHA against an order from the Western Cape High Court to process applications after prolonged delays. The SCA ruling said: “The approach … is unconscionable, especially coming from a state department. It could also, rightly, be described as disgraceful.”
The memo said that in the wake of the SCA judgment “class action cases have become more prevalent in the immigrations sphere; we are confronted with mandamus applications every day”.
“Mandamus” is a legal term for a court order that compels government officials to perform their duties.
The memo lists a series of court cases brought against the DHA since 2015 and cites two recent class actions, one brought by 37 applicants and another involving 185 people.
“The relief being sought in these matters is that the undetermined permits ... and appeals be adjudicated and delivered within 30 days of the court order being granted; it is all the exact same modus operandi employed by the attorneys.
“What is the way forward?” the memo’s authors ask, saying there is no end in sight for the backlog.
Referring to the case involving 37 applicants, the memo says: “Adjudicators did not have an opportunity to verify liabilities of the applicants and, in an effort to avert a contempt situation, issued permits to foreigners even though there was crucial information [missing]. This is a serious error and security risk.
“There is a fundamental danger to this type of adjudication, it creates the impression that the immigration process is not very vigorous and seem insubstantial and unconvincing. The immigration process can be thwarted.
“The immigration attorneys are emboldened to litigate more as they are able to ensure their clients’ applications are fast-tracked through a court order — essentially, they are jumping the queue.”
The memo urged the DHA to spell out its “challenges and the crisis” in its court papers in such cases. “The court might make a directive and afford an opportunity to attempt to get [the department’s] house in order, it might offer reprieve.”
It said the department had spent more than R1m in legal costs in matters brought by one immigration services company, Intergate.
Flonique Ashbury, a director at Intergate, said the firm had brought lawsuits on behalf of more than 700 people.
She said it was concerning that DHA officials were inconsistent in their decisions, which complicated efforts to attract foreign staff with critically needed skills. “We often see rejections based on the department overlooking documents in the application or simply not understanding the context of the supporting documents.”
Ashbury said 21,832 applications were rejected between 2016 and 2023, and it appeared that “overworked” officials were simply throwing out applications wholesale as a way of clearing the backlog.
“If this system is not resolved, investors and skilled foreign workers will retract from South Africa, which will further damage our economy.”
In another leaked document, the DHA says that as of September 11 last year there were 95,711 applications for temporary residence visas at various stages of adjudication. Of these, 58,705 had not yet even been assigned to an adjudicator.
Stefanie De Saude-Darbandi, whose law firm brought the class action suit that resulted in the 2017 ruling by the SCA, said that in a one-month period recently the firm “launched three class action lawsuits with close to 800 outstanding applications”.
“We go to court and we win, but the court orders end up in contempt of court. The director-general and minister do not comply, so we have to go back to the court for the contempt order,” she said.
In November home affairs minister Aaron Motsoaledi published a White Paper on citizenship, immigration and refugee protection that contained far-reaching proposals to overhaul the migration system.
A high-ranking DHA official said the main motive for overhauling the system was to deal with the application backlog. One factor that slowed down the application process was the suspension or dismissal of DHA officials for fraud and corruption, which caused staff shortages.
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