The Western Cape High Court has dismissed a Zimbabwean man’s application for an extension of the 180-day period to review the decision by the department of Home Affairs to declare him a prohibited person.
The 40-year-old Fidel Isheanesu Mugunzva was born in Zimbabwe. He first entered South Africa on 11 September 2011 on a visitor’s visa. It was due to expire on 2 October 2011. He obtained a second visitor’s visa entry on 29 October 2011 but departed on 4 November 2011. His last lawful travel under his visitor’s visa expired on 28 November 2011.
While in South Africa on his visitor’s visa in 2011, he sought employment as a business plan writer. The owner of the company he had applied to informed him that he could not work for her on a visitor’s visa and referred him to an immigration agent named Wendy. He went to see Wendy, but had no pre-determined objective of acquiring a permanent resident permit. His purpose was only to consult on his immigration options.
Despite his intention to obtain more information about his immigration options, Wendy asked about his family and whether he had siblings or parents who had ever lived in or still lived in South Africa. According to Mugunzva, Wendy picked up on these details and, instead of him completing an application form, undertook to revert to him in due course. He left Wendy without completing any forms.
R12 000 for permanent resident permit
In early 2012, he had contact with Wendy again, who this time informed him that his name appeared on a Home Affairs list. She suggested that the applicant’s mother may have applied for him and his siblings to stay in South Africa under an apparent amnesty Programme initiated by the South African government soon after 1994.
While the applicant had some reservations about whether the amnesty applied to him, given that his mother had no knowledge of any application and the obvious delay in the purported process, this did not deter Wendy, as, according to Mugunzva, she gave an explanation that made sense.
At the end of May 2012, Wendy contacted the applicant and informed him that he should collect his permanent resident permit. Mugunzva paid Wendy R12 000.
Fraudulent permanent resident permit exposed
On 12 June 2012, Mugunzva re-entered South Africa through the Oshoek border post between South Africa and eSwatini using a permanent resident permit. Thereafter, he used it without incident for eight years. Mugunzva apparently travelled, opened bank accounts, and even obtained employment at Sanlam using this permit.
According to Mugunzva’s passport stamps, he also departed and re-entered South Africa on multiple occasions. Mugunzva maintained in court documents that he used the permanent resident permit extensively. On each occasion, Home Affairs border officials processed the document without question.
In 2018, Mugunzva lost his permanent resident permit letter and applied to VFS Pretoria for proof of permanent residence using Home Affairs’ DHA Form 46. Home Affairs processed the application and, on 26 February 2020, informed Mugunzva that it could not find the permit number because it did not exist and that the permit was fraudulent.
The department also informed him that, as of that day, he was designated a prohibited person.
Mugunzva returned to Zimbabwe in August 2022. As he was unemployed, his income was irregular. He operated a small consultancy that conducted academic research and started a handyman company that handled repairs and renovations. He claims to have received the Minister’s written decision only on 23 November 2023.
‘Too poor to file’
Mugunzva informed the court that at the time, he was too poor to pursue legal means to review the decisions from Home Affairs.
He also maintained that he never received an opportunity to make representations prior to the initial decision by Home Affairs that declared him a prohibited person. In addition, he also never received the reasons for the initial decision.
Mugunzva’s submission that he could not afford lawyers or was too poor was supported only later by bank statements he did not originally file, which the Director General had to compel him to produce.
“However, the bank statements are also not convincing, as according to the applicant, he requested cash payments for work he has done. However, the affidavits do not set out the extent of these cash payments,” commented Acting Judge Adrian Montzinger.
“It goes further, the applicant’s averment that his sisters lent him the money to fund the current litigation is also uncorroborated. There are no affidavits from the sisters, and as I point out later, it is inconsistent with his indicating that he himself needed to save for the legal fees.
“The allegations that the applicant approached eight legal firms and clinics for assistance and was rebuffed are also not convincing. The applicant, again, only tendered evidence in reply to his endeavours to procure legal assistance. Those e-mails, however, reveal a different picture and are not consistent with the ‘I was too poor’ [argument].”
Merits
On the merits, the judge found that Mugunzva had reasonable prospects of success had the matter been heard on its merits.
Further, Home Affairs failed to give him an opportunity to make representations before declaring him a prohibited person.
The court also found that the department failed to properly investigate whether Mugunzva knowingly partook in fraud or was a victim of the agent.
However, the court found that Mugunzva’s excessive delay in bringing the review application outweighed these prospects of success.
