German woman planning to open guesthouse in SA wins battle against home affairs over visa refusal - IOL

Western Cape High Court sets aside refusal of German woman’s business visa.

The Department of Home Affairs has been ordered to reconsider a German woman's business visa application after the Western Cape High Court found that an immigration officer at the South African embassy in Berlin had unlawfully refused it without demonstrating the necessary authority.

Judge Phillipa Susan Van Zyl set aside the purported decision refusing Johanna Kerstin Schinker's application for a business visa and directed the Director-General of Home Affairs to reconsider it within 20 days.

Schinker, a German national who intends to establish and operate a guesthouse in South Africa, had applied for a business visa under section 15 of the Immigration Act.

Her application was rejected in a notice dated November 3, 2025, issued by the South African embassy in Berlin.

The refusal cited alleged shortcomings in her application, including the absence of proof that at least 60% of the business's employees would be South African citizens or permanent residents, evidence of registration with the South African Revenue Service and the Companies and Intellectual Property Commission, and proof of her investment.

However, Van Zyl found that the Immigration Act specifically empowers the Director-General to issue or refuse business visas.

While the Director-General may delegate those powers to other officials, the court found that Home Affairs had provided no evidence that such authority had been delegated to the immigration officer who signed Schinker's refusal notice.

The judge said an official could assess an application against documentary requirements and request additional information but could not simply refuse a business visa without the necessary statutory authority.

The court consequently declared that the purported decision was invalid and set it aside.

Home Affairs had argued that Schinker should first have exhausted internal remedies by requesting a review from the Director-General and subsequently approaching the Minister before instituting court proceedings.

Van Zyl rejected the argument, finding that the internal review process presupposed a valid decision by an authorised official.

In Schinker's case, the court found there was no valid decision capable of being subjected to the internal review process.

The judgment also dealt with a separate application brought by French national Thibaud Luciani, whose application for permanent residence had been rejected.

Luciani, the son of Gautier Luciani, a South African permanent resident, had applied for permanent residence under section 27(g) of the Immigration Act, which provides for applicants who are relatives of South African citizens or permanent residents within the first degree of kinship.

The Director-General rejected his application, citing his failure to submit a valid relative's visa.

However, Van Zyl found that the refusal was materially influenced by an error of law, noting that the requirements for permanent residence under section 27(g) did not include the additional requirement relied upon by Home Affairs.

The judge further found that the regulations cited by the department did not impose such a requirement for applications under section 27(g).

The court accordingly set aside the refusal and ordered the Director-General to reconsider Luciani's permanent residence application within 20 days.

Home Affairs and the minister were ordered to pay the costs of both applications.