The Papers an Agent Filed, Held Against You Years Later

The Papers an Agent Filed, Held Against You Twenty-Seven Years Later

Lu v Minister of Home Affairs [2025] ZAGPPHC 181 — a Chinese national, a permanent residence permit alleged to be fraudulent, a Judge President, and section 29(2)'s "good cause", a provision the Department of Home Affairs has long misread.

In 1998 a Chinese national by the surname of Lu entered South Africa on a visitor's visa. Two years later he was granted permanent residence. For more than two decades after that he married, raised children and built a life here.

Then the Department of Home Affairs pulled the old file and said: this permanent residence was obtained for you by an agent through fraud. With a single decision he became a prohibited person — someone the law bars from entering and remaining in the country.

On 26 February 2025, Mlambo JP, Judge President of the Gauteng Division of the High Court, Pretoria, heard the matter himself and set the Minister's decision aside. Of the reported cases available, this is the most direct and most useful "Chinese litigant × South African immigration law" judgment we have.

Case file

Part 1 — What a prohibited person is

The category the law nails to the outside of the door

The Immigration Act 13 of 2002 divides foreigners into three tiers. An ordinary foreigner may apply for a visa. A person declared an undesirable person (section 30) may not obtain a visa for a fixed period. A prohibited person (section 29) sits at the heaviest tier: once a person falls within any paragraph of section 29(1), the law directly disqualifies them from obtaining a port-of-entry visa, a visa, admission, or a permanent residence permit.

Immigration Act 13 of 2002, section 29(1)

The following foreigners are prohibited persons and do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit: … (f) anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document.

The elements of section 29(1)(f) are extraordinarily broad — "anyone found in possession of a fraudulent visa, passport, permanent residence permit or identification document". Note that the wording is "found in possession", not "forged", "used", or "knowingly". In A.K the Western Cape High Court put it bluntly: this is a matter of strict liability. Objectively, you were in possession of the document, and the elements are already satisfied — regardless of whether you knew, and regardless of who obtained it.

Why this provision is especially dangerous for Chinese litigants

Obtaining immigration status in South Africa through an agent is extremely common. The agent takes the passport, collects the fees, and returns the passport with the visa affixed a few weeks later — the applicant never sees the application form and has no idea what the supporting papers said.

If, years later, the Department decides that document was defective, strict liability means that "I did not know" is not, in itself, an escape from section 29(1)(f). The real battleground is not section 29(1), but the subsection that follows — section 29(2).

Part 2 — The heart of the case: "good cause" under section 29(2)

A provision the Minister has long misread

Immigration Act 13 of 2002, section 29(2)

The Director-General may, for good cause, declare a person referred to in subsection (1) not to be a prohibited person.

The provision is short: for good cause, a person may be declared "not" to be a prohibited person. Mr Lu applied by exactly this route to have the status lifted, was refused, and then brought a review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The Minister's defence ran as follows: your permanent residence was fraudulently obtained, so there is no good cause. Mlambo JP held this to be a methodological error — it collapses two questions that ought to be kept separate.

The rule this case establishes

1. Good cause is a self-standing requirement. The Minister cannot stop at the finding that "you contravened section 29(1)(f)". He must examine, separately and independently, whether the reasons the applicant advances amount to sufficient cause to lift the prohibition. The original reason for the declaration is not itself a factor in the good-cause enquiry — otherwise every section 29(2) application would be doomed to fail, and the provision would be a dead letter.
2. "No record found" is not the same as "fraud proved". The Department's sole basis for alleging fraud was that its systems held no record of the original application file. The court's response was direct: the Department had not proved fraud; all it had said was "we have no record". The organ of state bears the onus, and a missing file is the Department's own administrative failure — it cannot be converted into an adverse factual finding against the applicant.
3. Paying "lip service" to the children's interests is not a consideration. Mr Lu stated that his minor children risked being rendered stateless. The Minister "noted" this in the decision, then conducted no analysis of it. The court held this to be lip service — mentioned in form, not considered in substance — in breach of section 28(2) of the Constitution, under which "a child's best interests are of paramount importance in every matter concerning the child".
4. A failure to consider relevant factors is itself a reviewable defect. Long-term residence from 1998, family ties, social integration, and the distinction between an agent's wrongdoing and the applicant's own culpability all constitute "failure to consider relevant considerations" within the meaning of section 6(2)(e)(iii) of PAJA. The decision was accordingly set aside and remitted.

Part 3 — Two companion judgments

The stronger remedy the Western Cape gave, and a painful example of failure

A.K: the court declares outright that "you are not a prohibited person"

Francis J offered two eminently quotable statements. The first concerns proof:

A mere suspicion, however, even if genuinely held, cannot be elevated to a finding of fact without more.

— A.K v Minister of Home Affairs [2023] ZAWCHC 52

The second concerns the children: the Director-General had treated the two South African children as mere appendages of their mother, without any independent assessment of each child's own best interests — in breach of section 28 of the Constitution, the Children's Act 38 of 2005, and South Africa's international treaty obligations.

Most significant of all was the form of relief. Rather than remitting the matter as in Lu, the court exercised substitution under section 8(1)(c)(ii)(aa) of PAJA, applying the Trencon framework: it declared outright that the applicant was not a prohibited person, and directed the Director-General within 10 days to authorise her to remain in South Africa under section 32(1), barring her removal.

Mugunzva: won on the merits, lost on time

This 2026 judgment is the one Chinese litigants should remember most from this issue — because it is a cautionary tale.

On the merits Montzinger AJ was in fact quite sympathetic to the applicant: he expressly held that section 29(1)(f) does not apply ex lege to the innocent victim of fraud; that failing to afford a hearing before making the declaration breached natural justice; and that the Minister and Director-General had adopted "deferential postures" in the internal appeal and had not genuinely reconsidered the question of complicity.

But the applicant still lost — on PAJA's 180 days

Section 7(1) of PAJA requires a review to be instituted within 180 days of the date on which the person became aware of the decision and the reasons for it; out of time, one must apply for condonation under section 9. Here the applicant was roughly 825 days late. He sought condonation on the ground of poverty and inability to afford a lawyer, but the court found that during the same period he had records of international travel, visa applications and business activity — his explanation contradicted the evidence. Condonation was refused, and the merits therefore never reached a hearing at all.

In a sentence: however strong the merits, once the 180 days pass, it may all come to nothing.

Part 4 — What these three cases tell us together

Three years, one rule taking shape

• 2023 — A.K v Minister of Home Affairs (WCC): section 29(1) is strict liability, but the good-cause enquiry under section 29(2) must go beyond the contravention itself; suspicion is not fact; each child must be assessed independently. Substitution, with authorisation to remain within 10 days.
• 2025 — Lu v Minister of Home Affairs (GP, Mlambo JP): good cause is a self-standing requirement; "no record found" is not "fraud proved"; lip service to the children's interests is not a consideration. Set aside and remitted.
• 2026 — Mugunzva v Minister of Home Affairs (WCC): section 29(1)(f) does not apply ex lege to the innocent victim of fraud; a section 8 internal appeal conducted as a genuine "wide appeal" could in theory cure procedural defects in the original decision — but here it did not. The application was dismissed for being 825 days out of time.

Taken together, the three cases yield a rule of great practical importance on the allocation of the onus: under section 29(1)(f), the Department need only prove that "you were in possession of the document"; but once the matter moves into section 29(2), the Department must respond substantively and independently to every good-cause ground the applicant raises — it cannot instead demand that you prove your own innocence. A missing file, a system that shows no record, or bare suspicion is not enough to support a decision that strips away more than two decades of established status.

Practical points for litigants

• Before handing your passport to an agent, ask for a copy of the application papers. This is the cheapest and most effective form of self-protection. All three cases in this issue share the same starting point: the litigant had no idea what was submitted in their name.
• The moment you receive any adverse decision, record the date of receipt. The section 8(4) internal appeal runs for 10 working days; the PAJA review runs for 180 calendar days. Both clocks run at once, and both start from receipt.
• When applying under section 29(2), do not argue only "I didn't know". Strict liability makes that point ineffective at the section 29(1) level. Concentrate your fire on good cause: length of residence, tax and law-abiding record, family structure, the children's nationality and schooling, and the severance of the agent's wrongdoing from your own culpability.
• Devote a separate section to the children. Both A.K and Lu were set aside because the Department failed to assess the children's interests independently. Section 28(2) of the Constitution is a badly underused weapon in immigration matters.
• Never let the 180 days lapse. The lesson of Mugunzva is that a court may agree with your merits and still decline to hear the matter at all because you were out of time.

An organ of state holds more than two decades of a person's life in its hands. It may overturn all of it — but it must give reasons, and those reasons must be things it genuinely considered, not the line at the end of the decision that reads "the Department has noted".

Sources

• Lu v Minister of Home Affairs and Another (2023-034681) [2025] ZAGPPHC 181 (26 February 2025)
• A.K and Others v Minister of Home Affairs and Another [2023] ZAWCHC 52; 2023 (3) SA 538 (WCC); [2023] 2 All SA 349 (WCC) (10 March 2023)
• Mugunzva v Minister of Home Affairs and Another (Review) (2025/058782) [2026] ZAWCHC 307 (11 June 2026)
• Immigration Act 13 of 2002 ss 29(1)(f), 29(2), 31(2), 32(1), 48; Immigration Regulations 2014 regs 26(6)–(7)
• Promotion of Administrative Justice Act 3 of 2000 ss 6(2)(e)(iii), 7(1), 8(1)(c)(ii)(aa), 9
• Constitution of the Republic of South Africa, 1996, s 28(2); Children's Act 38 of 2005
• Note: Lu is also reported anonymously on LawLibrary as Y L v Minister of Home Affairs under a different neutral citation; when citing, the SAFLII version with case number 2023-034681 is preferred.

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.