Delay Is Itself Unlawful: De Saude and the 30/60-Day Timetable

Delay Is Itself Unlawful: De Saude and the 30/60-Day Timetable

De Saude Attorneys [2019] ZASCA 46 — the Supreme Court of Appeal fixed deadlines for 323 backlogged applications in a single order, and described the Department of Home Affairs' condition as "chronic institutional incapacity".

A permanent residence application goes in, and three years pass with no word. Calls go unanswered, emails unreturned; at the office you are told "it is still being processed". This is the most common and most disheartening predicament in South African immigration practice.

In 2019 the Supreme Court of Appeal, in a matter brought by an immigration law firm, fixed deadlines for 323 backlogged applications at once: temporary residence visas and s 8 appeals within 30 days, permanent residence and naturalisation within 60 days, and applications that could not be located to be reported to the applicant within two weeks.

Even more worth reading is the language the court used. It called the Department's condition "chronic institutional incapacity" and its litigation conduct "unconscionable" and "disgraceful". Those words can now go straight into your papers.

Case file

Part 1 — The first question: can a firm sue on its clients' behalf?

The Department's first line of defence was locus standi: these 323 applicants each have their own matter, so on what basis may a single law firm sue jointly in its own name?

The Supreme Court of Appeal rejected this defence on the basis of section 38 of the Constitution. That section extends constitutional standing far wider than the common law, and includes "anyone acting on behalf of another person who cannot act in their own name" and "anyone acting in the public interest".

On standing

1. Section 38 of the Constitution adopts a broad standing test. The court noted that the applicants were largely foreigners of limited means, and that to require each to bring a separate High Court application would in effect deny them relief. The practising attorneys had standing because their clients could not litigate individually.
2. Aggregated relief is workable and necessary in the immigration field. This opened the door to "batches of applicants suing the Department jointly". For the same kind of systemic delay, there is no need for one case per person.

What this means for Chinese applicants

Within the Chinese community, it is not uncommon for the same group of people to lodge similar applications through the same agent in the same period, and then to be left in limbo together. De Saude means that such situations can be consolidated into a single application — sharing costs, pooling evidence, and obtaining a deadline order in one go.

Part 2 — The core: a failure to decide is itself reviewable administrative action

Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g) and s 6(3)

s 6(2)(g): a court may review administrative action if "the action concerned consists of a failure to take a decision".
s 6(3): where the law prescribes a period for taking a decision and the administrator has failed to decide within it, or where the law prescribes no period and the administrator has failed to decide within a reasonable time, this constitutes a "failure to take a decision" within the meaning of s 6(2)(g).

This is the legal fulcrum of the whole route. It answers a common confusion: "they haven't decided yet, so what do I sue on?" — the answer is: sue them for not deciding.

The court also relied on a promise in the preamble to the Immigration Act: that visas and permanent residence permits be issued "as expeditiously as possible". A preamble is not, in South African law, an enforceable substantive provision, but it can be used to establish the legislative purpose and so to define what a "reasonable time" is.

Part 3 — The order the court actually made

A timetable you can copy

Source: De Saude Attorneys [2019] ZASCA 46. This is a Supreme Court of Appeal-level deadline precedent, effective nationwide.

It should be noted that these deadlines are not universal statutory periods, but an order made by the court in respect of the 323 specific applications in the case. Their precedential value lies in this: the Supreme Court of Appeal accepted that such deadlines are reasonable — so when later cases cite them, a court will struggle to say that 30 or 60 days is too harsh.

Part 4 — Four companion judgments: different deadlines for different situations

Ziaul: ten days to respond, fourteen to extend

This is the shortest deadline in the reported cases, suited to urgent, cyclical applications (such as permit extensions). The court reaffirmed: where the law prescribes no period, the administrator must decide within a reasonable time.

Mlambo: a decision made but not communicated is equally unlawful

The rule this case establishes

1. Unreasonable delay is itself unlawful administrative action. The court relied on Ruyobeza v Minister of Home Affairs: three months of unexplained delay is unreasonable. Six years needs no further comment.
2. "Left at the office for you to collect" is not lawful service. Section 8 of the Immigration Act requires the decision to be served on the person together with reasons. Leaving the result at a regional office in effect deprived the person of the chance to seek reconsideration under section 8 — because she had no idea a decision had been made, and the ten-working-day clock could not begin to run.

The court ordered the Department to serve the decision (with reasons) in writing directly on the applicant and her attorneys within 5 days, and to extend her period for seeking administrative reconsideration. This supplementary order matters — it recognised the prejudice to time limits caused by the procedural defect, and repaired it.

Ling: three and a half years' delay, and the court orders issue outright

This case is especially apt for Chinese investors. The two applied for permanent residence under s 27(f) (financially independent permanent residence, with a net-worth threshold and a once-off fee) and s 26(b) (spouse of a permanent residence applicant). The Department refused on the ground that a bank statement was forged — a statement that the bank subsequently confirmed to be genuine.

The rule this case establishes

1. A decision founded on a material mistake of fact can be set aside. A "material mistake of fact" is an independent ground of review. Where an administrator's factual finding is shown to be wrong, the decision built on it loses its foundation.
2. Reasons must be sufficient to enable the person to make a substantive case. The court held the Department's reasons for refusal vague, leaving the applicants unable to appeal effectively — in line with the Koyabe standard.
3. A delay of three and a half years constitutes "exceptional circumstances". Combining the mistake of fact with prolonged delay, the court held that the case met the conditions for substitution and ordered the permits issued outright, rather than remitting.

For Chinese investors applying for permanent residence under s 27(f)

Refusal on the ground of "suspicious financial documents" is the most common reason for rejecting this kind of application. Ling's answer is: obtain a written confirmation letter from the issuing institution. A single confirmation from the bank turns the Department's "suspicion" into a "mistake of fact" that can be disproved. Read alongside issue 01's Lu ("no record found is not the same as fraud proved"), the point comes into sharper focus: the onus lies on the Department, not on you.

Scalabrini: structural interdict and monthly reporting

To compel the Department to act rather than merely reconsider, the Supreme Court of Appeal provided the template in Scalabrini Centre v Minister of Home Affairs ([2017] ZASCA 126; 2018 (4) SA 125 (SCA)): the court ordered the respondents to reopen and maintain a fully functional refugee reception office in the Cape Town metropolitan area by a specified date, and to report progress to the court monthly. This is what is known as a structural interdict.

Part 5 — Arranging these cases into a battle plan

Statutory combination: PAJA s 6(2)(g) + s 6(3) (failure to decide) + s 8(1)(c)(ii)(aa) (substitution) + s 9 (condonation); Immigration Act s 8 (decision to be served with reasons); Immigration Act preamble ("as expeditiously as possible"); Constitution ss 33, 38.

Practical points for litigants

• "Not yet decided" is not a bar to suing — it is precisely what you can sue on. PAJA s 6(2)(g) and s 6(3) exist for this.
• First send a formal letter of demand, and keep proof of service. This letter is the key evidence for later proving "unreasonable delay", and often draws out a decision by itself.
• Applicants stuck in the same batch can sue jointly. De Saude has already established this route, and costs can be shared.
• When seeking the order, state the deadline specifically. Do not merely ask the court to "order the respondents to decide"; write in the notice of motion the 30/60 days of De Saude or the 10/14 days of Ziaul.
• Where the delay is long and the Department's factual finding is plainly wrong, seek issue outright. (Ling, A.K; the threshold for substitution is covered next issue.)
• Costs are worth pursuing. De Saude, Ling and Mushore each awarded costs against the Department; Xiuguo ([2018] ZAGPPHC 508) even awarded punitive costs on the attorney-and-client scale.

The administration's silence is not neutral. When a person's residence status, right to work, children's schooling and family reunification all hang on an application that goes unanswered, the delay is itself a decision — one that simply refuses to put its name to itself.

Sources

• Director-General of the Department of Home Affairs and Others v De Saude Attorneys and Another (1211/2017) [2019] ZASCA 46; [2019] 2 All SA 665 (SCA) (29 March 2019)
• Ziaul and Others v Minister of Home Affairs and Another (136725/2024) [2024] ZAGPPHC 1316 (17 December 2024)
• Sibindi Clementine Mlambo v Minister of the National Department of Home Affairs and Another (94266/2019) [2024] ZAGPPHC 1111 (20 October 2024)
• Ling and Another v The Director-General of the Department of Home Affairs and Another (6928/2022) [2022] ZAWCHC 177 (9 September 2022)
• Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others [2017] ZASCA 126; 2018 (4) SA 125 (SCA); [2017] 4 All SA 686 (SCA)
• Xiuguo and Another v Director-General of the Department of Home Affairs and Another (60392/16) [2018] ZAGPPHC 508 (5 July 2018)
• Promotion of Administrative Justice Act 3 of 2000 ss 6(2)(g), 6(3), 8(1)(c)(ii)(aa), 9; Immigration Act 13 of 2002 preamble and ss 8, 26(b), 27(f); Constitution ss 33, 38

Disclaimer: The judgments analysed here are publicly reported decisions of the South African courts, available in full on SAFLII (www.saflii.org); the parties' names appear on the face of the public judgments and are not client information of this firm. This article is general legal information and academic discussion. It does not constitute legal advice on any specific matter and does not create an attorney-client relationship. Case law may be overturned or distinguished by later decisions, and legislation may be amended; verify the original text and the latest developments, or consult a practising attorney on your own matter, before relying on any point. Verified as at 27 August 2026.

June Luna Immigration Attorneys Inc. — Cape Town. Immigration and administrative law. Visa-refusal appeals (s 8(4)/s 8(6)); overstay and undesirable-person relief; detention and deportation; permanent residence and naturalisation; PAJA review and mandamus.