A SOUTH African High Court has dismissed a Zimbabwean national’s bid to overturn a Home Affairs decision declaring him a prohibited person after officials found he was using a fraudulent permanent residence permit.
In a judgment delivered on June 11, the Western Cape Division of the High Court in Cape Town ruled that Fidel Isheanesu Mugunzva had delayed too long before launching a judicial review application against the Department of Home Affairs.
Although the court found that Mugunzva had reasonable prospects of success on the merits of his case, Acting Judge Adrian Montzinger refused to condone the late filing of the application under the Promotion of Administrative Justice Act (PAJA).
“The excessive delay and the incoherent or weak explanation for the delay are but some of the factors that diminish those factors that favour the applicant, like the prospects of success,” the judge ruled.
The court dismissed the review application and ordered each party to bear its own legal costs.
Mugunzva, a 40-year-old Zimbabwean citizen, first entered South Africa in 2011 on a visitor’s visa.
According to court papers, he later sought assistance from an immigration agent identified only as Wendy after being advised that he could not work legally in South Africa on a visitor’s permit.
The court heard that the agent later provided him with what appeared to be a permanent residence exemption permit and accompanying documents, for which he paid R12 000.
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Mugunzva used the permit openly for several years, travelling in and out of South Africa, opening bank accounts and obtaining employment without objection from immigration authorities.
However, in 2020, when he applied for proof of permanent residence, the Department of Home Affairs informed him that the permit number did not exist and declared him a prohibited person under section 29(1)(f) of the Immigration Act.
He challenged the decision through internal Home Affairs processes before eventually approaching the High Court in December 2024.
The court found that the review application had been filed approximately 825 days outside the 180-day deadline prescribed by PAJA.
Judge Montzinger criticised the applicant’s explanation for the delay, saying it was incomplete and inconsistent.
The judge noted that during the same period Mugunzva claimed he lacked funds to litigate, he had managed to relocate to Zimbabwe, renew his passport, start businesses and pursue international academic opportunities.
Despite dismissing the application on procedural grounds, the court made several findings favourable to the applicant on the substance of the dispute.
The judge rejected Home Affairs’ argument that a person automatically becomes prohibited once found in possession of a fraudulent permit.
Instead, the court held that declarations under section 29(1)(f) constitute administrative action and must comply with procedural fairness requirements under PAJA.
The court also found that Home Affairs failed to afford Mugunzva an opportunity to make representations before declaring him prohibited.
Judge Montzinger further ruled that both the Director-General and the Minister of Home Affairs failed to properly consider whether Mugunzva knowingly participated in fraud or whether he had been an innocent victim of an immigration scam.
The judgment stressed that authorities are required to examine the issue of “complicity” before confirming a prohibition.
“An important question, where a section 29(1)(f) prohibition is challenged, is whether the affected person was complicit in the fraud or whether he was an innocent victim of it,” the court stated.
The judge said that had condonation for the late filing been granted, the review application would likely have succeeded and the matter would have been sent back to the Director-General for reconsideration.
However, the court stopped short of declaring Mugunzva lawfully entitled to remain in South Africa, saying that determination properly belonged to immigration authorities after a fresh investigation.
