Stopped at the Airport: A Valid Visa, and the Right to an Interpreter

Stopped at the Airport: A Chinese Couple, a Valid Visa, and the Right to an Interpreter

Chen v Director-General Home Affairs [2014] ZAWCHC 181. Refused entry despite holding a valid work visa, and held in an airport transit facility for nearly two months. One of the reasons the court granted interim relief was inadequate interpretation.

On 5 October 2014, Meizhu Chen flew from China into Cape Town. She held a valid work visa, issued in January 2013 and not due to expire until January 2016.

The immigration officer suspected her passport had been tampered with, asked her some questions, was dissatisfied with her answers, and refused her entry. She was held in an airport transit facility — for a day, a week, a month.

On 2 December 2014, the Western Cape High Court granted interim relief, permitting her to enter and reside pending the conclusion of judicial review. One of the central reasons for the judgment turned on something extremely common among Chinese-speaking parties yet rarely raised as a legal issue: throughout the questioning, she was not given adequate interpretation.

Case file

• Case name: Chen and Another v Director-General Home Affairs and Others
• Citation: (18985/2014) [2014] ZAWCHC 181
• Court: Western Cape Division, Cape Town
• Judge: Riley AJ
• Date: 2 December 2014 (heard 3 November 2014)
• Parties: First applicant Meizhu Chen (Chinese national, holder of a valid work visa); second applicant Tongxiang Gao (her spouse, a Chinese national)
• Nature: Refusal of entry at a port of entry; urgent application for interim relief
• Outcome: Interim relief granted, permitting entry and conditional residence pending the conclusion of judicial review; the respondents to pay costs

Part 1 — What Refusal of Entry at a Port Actually Is

Many people assume that holding a visa is the same as being allowed to enter. In law it is not. The Immigration Act separates the issue of a visa and the granting of admission into two distinct steps.

§ Immigration Regulations 2014, reg 11(6)(b) (gist)

A visa issued by a South African mission abroad takes effect only once the holder is granted admission by an immigration officer, and its period of validity runs from the date of admission.

In other words, the sticker the mission gives you is eligibility to enter, not a guarantee of entry. The immigration officer at the port still has power to refuse you entry under provisions such as s 34 and s 35.

What happens after refusal

A person refused entry is usually held in an airport transit facility — in law this is treated as "not yet having entered", so the ordinary rules of immigration detention do not apply. The airline bears the obligation to return you to your point of departure.

The practical predicament is that a transit area has no lawyer, no interpreter, and your phone may be taken away, while the place where you are held is, in law, "not part of South Africa". The applicant in Chen was held there for nearly two months.

Part 2 — The Five Defects the Court Found

The five points Riley AJ found:

1. The immigration officer has a constitutional duty to ensure competent interpretation throughout. This is the most valuable finding in the case. The court noted that, given the severity of the consequences of refusing entry, the standard of interpretation should be on a par with criminal proceedings. A phone and a person of unknown qualifications interpreting on an ad hoc basis is not enough to satisfy this requirement.
2. The immigration officer followed the wrong procedure. What the officer actually conducted was an inquiry under s 41 (verification of the identity of a suspected illegal foreigner), rather than the port-of-entry refusal procedure prescribed by reg 6 of the Immigration Regulations 2014. Applying the wrong procedure constitutes unlawful administrative action.
3. Holding a valid permit registered on the system establishes a prima facie right. Even where there is a technical discrepancy on the documents, so long as the visa is validly registered on the Department of Home Affairs' system, the applicant already has a sufficient basis of right to be protected in interim-relief proceedings.
4. Prolonged detention in a transit facility constitutes irreparable harm. Held in the transit facility since 5 October 2014, with her health deteriorating, engaging the section 10 right to dignity and the section 12 right to freedom and security of the person — this constitutes irreparable harm, one of the core requirements of an interim interdict.
5. The court has power to grant interim just and equitable relief. Under section 172(1)(b) of the Constitution, a court may make any order that is just and equitable. This case differs from those seeking final relief (such as Mahlekwa and Khan): conditional release does not prejudice the respondents' substantive defence.

Riley AJ also invoked the promise in the preamble to the Immigration Act: that South Africa's migration management should be built on a "human rights based culture"; and that the protection of the Constitution extends equally to foreign nationals.

Part 3 — Interpretation: A Seriously Underrated Ground of Attack

For Chinese-speaking parties, the interpretation finding in Chen is almost tailor-made. In South African immigration procedures, Chinese-speaking parties encounter roughly three layers of language difficulty:

1. Port questioning conducted entirely in English, or with airline ground staff pressed into service as interpreters. Ground staff are neither a neutral third party nor necessarily capable of translating legal terminology.
2. The notification procedure during detention is served in written English. Statutory forms such as Form 1, Form 19 and Form 20 are all in English. A party may sign without necessarily understanding what they are signing — see the painful lesson of the Li case in the next article.
3. Documents in Chinese submitted to the court or the Department are of questionable translation provenance. Reg 9(4)(b) of the Immigration Regulations requires certification as a correct translation by a sworn translator. Whether a Chinese-English translation notarised at a notary office in China is accepted is, at present, without written guidance.

The Highest-Level Judicial Recognition to Date

Companion case: Chinese sworn translator

• Case name: Commissioner for the South African Revenue Service and Others v Dragon Freight (Pty) Ltd and Others
• Citation: (751/2021) [2022] ZASCA 84; [2022] 3 All SA 311 (SCA); 85 SATC 289
• Court: Supreme Court of Appeal | Schippers JA | 7 June 2022
• Relevant finding: The judgment records that the translator was registered as a sworn Chinese-English translator, on which basis the relevant statements were found to be capable of being understood and accepted.

This was a customs and tax matter (the seizure, under s 88(1)(c) of the Customs and Excise Act, of imported garments whose dutiable value had been under-declared), and Chinese translation was not the core issue. But it is the highest-level judicial record to date confirming that a translation made by a sworn, registered Chinese-English translator is admissible.

Practical approach

When submitting documents in Chinese to a South African court or the Department of Home Affairs, the translation should be provided by a Chinese-English translator sworn and registered at the High Court, accompanied by an affidavit. If a dispute arises, you can cite the record in Dragon Freight and reg 9(4)(b) of the Immigration Regulations 2014.

Note: this case-law research found no South African judgment in which "the accuracy of Chinese translation" or "challenge to a translator's qualifications" was the core issue. This is a gap, and it means that such an argument currently has no direct precedent to draw on.

Part 4 — The Procedure to Follow When Stopped at the Airport

Five steps when refused at a port:

1. Do not sign any document you do not understand. But equally, do not refuse to acknowledge receipt — the two are different. The correct course is to acknowledge receipt and note beside your signature "received but contents not admitted", while asking for a copy. (For the consequences of refusing to acknowledge receipt, see the Li case in the next article.)
2. Ask clearly and repeatedly for Chinese interpretation. And ask that the fact that "interpretation was requested but not provided" be placed on record. This was the core ground of attack in Chen, and the evidence must be fixed at the scene.
3. Ask for the refusal-of-entry decision and its reasons in writing. Both section 33(2) of the Constitution and s 8(3) of the Immigration Act require reasons. An oral notification does not constitute an appealable decision.
4. Contact a lawyer or family within the country immediately. Time inside the transit facility is the most precious. The applicant in Chen suffered deteriorating health while detained, a fact that later became key evidence of "irreparable harm" — keep your medical records.
5. Bring an urgent application. Brought under Uniform Rule 6(12), seeking interim relief: admission and conditional residence pending the conclusion of judicial review. Chen is the template for this route.

Part 5 — A Boundary That Must Be Made Clear

What Chen obtained was "interim relief", not "victory"

What the court granted was interim relief — permitting her to enter and reside until the conclusion of judicial review — not a finding that the refusal of entry was unlawful. The substantive dispute was left for later determination.

This is inherent in the nature of an interim interdict: at this stage the court decides only (a) whether there is a prima facie right; (b) whether there is irreparable harm; (c) the balance of convenience; and (d) whether there is another satisfactory remedy. Do not read it as "a valid visa refused entry is bound to win".

But that is precisely where its practical value lies. For a party trapped in the transit area, what matters most is not winning a declaratory order three years later, but whether they can walk out of that door today. Chen shows that, on sufficient evidence, this can be done.

Practical points for applicants

• A valid visa may still be refused at a port. A visa is eligibility to enter, not a guarantee of entry (reg 11(6)(b)). Before a long flight, make sure your passport is undamaged and shows no signs of alteration, and carry an employer letter, an itinerary and proof of address.
• Interpretation is not a courtesy; it is part of procedural fairness. Chen establishes that the standard of interpretation at port questioning should be on a par with criminal proceedings. Request it at the scene, and ask for it to be placed on record.
• Acknowledge receipt, but note your reservation. Refusing to acknowledge receipt will lose you later procedural defences (detailed in the next article); signing blindly may be treated as an admission.
• Keep every record from inside the transit facility. Medical records, communications records, meal and accommodation conditions — these are the materials proving "irreparable harm".
• Move fast on the urgent application. In Chen, nearly a month passed from refusal (5 October) to hearing (3 November). The earlier you start, the smaller the harm, and the more readily the court accepts urgency.
• For Chinese documents going to court, use a sworn translator registered at the High Court. (Reg 9(4)(b); Dragon Freight [2022] ZASCA 84.)

A person stands behind the airport's glass door, holding a valid visa, unable to understand what the person opposite is asking. This is not a language problem; it is a procedural problem — and a procedural problem is something you can take to court.

Sources

• Chen and Another v Director-General Home Affairs and Others (18985/2014) [2014] ZAWCHC 181 (2 December 2014). saflii.org/za/cases/ZAWCHC/2014/181.html
• Commissioner for the South African Revenue Service and Others v Dragon Freight (Pty) Ltd and Others (751/2021) [2022] ZASCA 84; [2022] 3 All SA 311 (SCA); 85 SATC 289 (7 June 2022)
• Immigration Act 13 of 2002, preamble and ss 8, 9, 29, 30, 34, 35, 41
• Immigration Regulations 2014 regs 6, 9(4)(b), 11(6)(b)
• Constitution of the Republic of South Africa, 1996, ss 10, 12, 33(2), 172(1)(b); Uniform Rules of Court, rule 6(12)
• Note: this research found no South African judgment in which "the accuracy of Chinese translation" or "challenge to a translator's qualifications" was the core issue; the relevant passage in Dragon Freight is incidental.

Disclaimer

The judgments analysed in this article are all reported South African decisions in the public domain, available in full on SAFLII (www.saflii.org); the parties' names appear as set out in the published 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 particular matter, nor does it create an attorney-client relationship. Case law may be overturned or distinguished by later decisions, and statutes may be amended; before relying on anything here, check the original text and the latest developments, or seek the advice of a practising attorney on your particular case. Date checked: 27 August 2026.

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