The Ten Working Days After a Refusal: Four Points of Attack from Koyabe and Mushore

The Ten Working Days After a Refusal: Four Points of Attack from Koyabe and Mushore

Koyabe 2010 (4) SA 327 (CC) | Mushore [2022] ZAWCHC 267 — why you must exhaust the internal remedy first, and how to fight the internal appeal, including the point almost everyone overlooks: did the person who signed have the authority?

A refusal letter arrives, and most people's first instinct is to find a lawyer and go to the High Court. That is the most expensive step, and the most likely to fail.

In Koyabe the Constitutional Court was clear: before review, you must first exhaust the internal remedies under section 8 of the Immigration Act — and within ten working days. This threshold turns away more applicants than any substantive ground ever does.

But the internal appeal is not a formality to be gone through. The 2022 Western Cape High Court decision in Mushore shows how to fight it: four points of attack, the first of which almost everyone overlooks — did the person who signed the refusal actually have authority to decide on the Minister's behalf?

Part 1 — The two tiers of remedy under section 8

And their two separate ten-working-day windows

Immigration Act 13 of 2002, s 8(3)–(6) (summarised)

(3) Any decision that materially and adversely affects a person's rights must be communicated in the prescribed manner and must be accompanied by the reasons for that decision.
(4) An affected person may, within ten working days of receipt of the notification, apply in the prescribed manner to the Director-General for review or appeal.
(5) The Director-General must consider the application and may confirm, reverse or vary the decision.
(6) A person dissatisfied with the Director-General's decision may, within ten working days of receipt of that decision, apply in the prescribed manner to the Minister for review or appeal.

Section 8 appeal at a glance

Two clocks running at once

The section 8 internal appeal is 10 working days; the PAJA section 7(1) review is 180 calendar days. Miss the former, and the subsequent review will be dismissed for "failure to exhaust internal remedies"; miss the latter, and you must fight the low-odds battle of condonation (see Mugunzva in our previous issue — 825 days late, condonation refused). The first thing to do when a refusal arrives is to mark the date of receipt on the calendar and count down both numbers at the same time.

Part 2 — Koyabe: why you must exhaust the internal remedy first

Section 7(2) of PAJA provides that a court may not entertain a review where internal remedies have not been exhausted, unless there are exceptional circumstances and it is in the interests of justice to exempt the person from that obligation. Koyabe set this threshold high, and the applicants in that case failed to cross it.

The court's reasoning was not mere proceduralism. Mokgoro J stressed that internal remedies are faster, more specialised and less costly, and give the administration the chance to correct itself — an important part of administrative-law legality. To skip them and go to court is to have the court make the first assessment in the administration's place.

But the internal remedy must be "genuinely available"

1. The internal remedy must be available, effective and sufficient. If a remedy exists in name but cannot in reality be invoked or cannot produce a practical result, it is not an internal remedy within the meaning of section 7(2) of PAJA, and the person may proceed directly to review.
2. Reasons need not be exhaustive, but must be enough to support a respectable appeal. This is Koyabe's most-quoted proposition. The test for adequacy of reasons is not academic completeness but functional usability — whether, on the strength of them, the person can make out a reasonably substantial case, that is, mount a substantive review or appeal.
3. The Immigration Act says only "prescribed form", but the Constitution requires reasons. Section 8(1) appears on its face to impose only a formal requirement. The court held that section 33(2) of the Constitution independently requires that a person whose rights are adversely affected has the right to written reasons. The administration cannot refuse to explain on the ground that "the statute does not require it".

Reasons are not just a formality. They serve a number of important purposes: they ensure that the decision-maker applies his or her mind, they permit the affected party to determine whether the decision is reviewable, and they promote public confidence in the administrative process.

— summarising the reasoning in Koyabe 2010 (4) SA 327 (CC)

Part 3 — Mushore: the four points of attack in an internal appeal

A judgment that took the Department apart piece by piece

This case repays close reading by Chinese applicants because it concerns precisely the critical-skills work visa (section 19(4)), and the court dismantled it point by point. The four points of attack follow.

Point one: did the person who signed have authority?

The decision dismissing the s 8(6) ministerial appeal was made by an Assistant Director. The court held that this official lacked a valid delegation and had no power to decide a s 8(6) appeal on the Minister's behalf, so the decision was invalid for breach of the principle of legality.

This is the point most easily overlooked, and the most easily made out

A s 8(6) appeal is, in law, made to the Minister. If the final decision is signed by a mid-level official and the Department cannot produce a valid instrument of delegation, the decision lacks a legal foundation. In practice: when calling for the full record under Uniform Rule 53 on review, expressly demand that the Department produce the instrument of delegation. If it cannot, this point stands.

Point two: the wrong provision was applied

The Department invoked the 60-day submission period in Immigration Regulation 9(5)(a) against the applicant. The court held that this period does not apply to critical-skills visa applications — a case of applying the wrong provision.

Point three: a requirement the law does not impose was invented

The Department required the applicant to submit a "good cause letter". On examination the court found that neither section 19(4) nor regulation 18 imposes any such requirement. The administration may not set thresholds beyond the law for an applicant — the other side of the same coin as the "guidance" principle in Dawood (previous issue): what the law does not write, the official cannot add.

Point four: a delay of six years and two months

The Director-General delayed six years and two months in deciding on the applicant's representations. The court cited Kruger v President of the Republic of South Africa:

a failure to give a decision over an unduly prolonged period of time constitutes unfair administrative action

— cited in Mushore [2022] ZAWCHC 267

The court further held that the assessment of whether the applicant (a chemical scientist) fell within the critical skills was "unreasonable and unsupported by the relevant material".

Part 4 — Turning the four points into a checklist

On receiving a decision dismissing a section 8 appeal, check each item

1. Who signed, and is there an instrument of delegation? The s 8(4) power lies with the Director-General, the s 8(6) power with the Minister. If someone else signed, demand production of the instrument of delegation. (Mushore)
2. Is the provision cited in the decision the one that applies to my category of application? Different visa categories are governed by different regulations. Citing the wrong provision is applying the wrong law. (Mushore)
3. Was I asked to submit material the law does not require? Compare the relevant provisions of the Immigration Act and the Immigration Regulations word for word. A requirement beyond the law is ultra vires. (Mushore)
4. Are the reasons furnished enough for me to write a substantive appeal? This is Koyabe's functional test. If the reasons are mere conclusions ("the application does not meet the requirements") without reasoning, they are inadequate. (Koyabe; see also Mukungubila [2018] ZASCA 191, where the RSDO's reasons were "unintelligible, conclusory and devoid of reasoning".)
5. Were the statutory considerations genuinely considered, or merely "noted"? See the lip-service finding in Lu (issue 01).
6. How long was the delay? Delay can independently constitute unfair administrative action. (Mushore; detailed next issue.)
7. What is my date of receipt, and how much of each clock is left? Section 8 appeal: 10 working days; PAJA review: 180 calendar days.

All of the above may be pleaded together in a single founding affidavit; there is no need to choose one.

Part 5 — A gap that must be acknowledged

The overstay → undesirable route lacks authoritative case law

For Chinese litigants the most common route is: visa overstayed → declared undesirable under reg 27(3) (five years for an overstay of more than 30 days) → seek the Minister's waiver under s 30(2), or bring a s 8 appeal. But in this round of case research we could not find any reported substantive judgment whose subject was a s 30(1)(h) undesirability declaration. Of the only two related judgments, Johnson v Minister of Home Affairs [2014] ZAWCHC 101 gave only interim relief, while Y Y v Minister of Home Affairs [2020] ZAGPJHC 216 turned on V-listing procedure.

This means the route can, for now, only be argued by combination: Koyabe (duty to give reasons) + Mushore (delegation and extra-legal requirements) + Lu and A.K (good cause as a self-standing requirement) + De Saude (time-bound decisions). The very gap in the case law explains why so few such matters reach judgment — most are abandoned along the way.

A practical point from Y Y in passing: the court declined to order the issue of a relative's visa outright, but ordered that the Department must formally take a V-listing decision under s 8(1) with reasons, served by email on the attorneys, and not remove the person until the Minister confirmed. This solves a very common bind — VFS tells you verbally "you have been V-listed", but you never receive any written decision. With no formal decision and reasons, there is no enforceable adverse act and nothing to appeal against; the court can order the Department to produce it.

Practical points for litigants

• On receiving a refusal, do three things first: record the date of receipt; check the identity and authority of the signatory; compare the provisions cited in the decision word for word. None of these costs money.
• Do not skip section 8 and go straight to court. The Koyabe threshold is high, and the twin test of "exceptional circumstances + interests of justice" is rarely met.
• Write the section 8 appeal like a set of pleadings, not a letter of complaint. Match each ground in section 6(2) of PAJA point by point: ultra vires, procedural unfairness, failure to consider relevant considerations, taking irrelevant considerations into account, inadequate reasons, unreasonableness.
• On review, always call for the full record under Uniform Rule 53. Instruments of delegation, internal memoranda, assessment forms — the decisive evidence in both Mushore and Lu came from the record, not from the applicant's own affidavit.
• If told only verbally that "you are on a list", first demand a written decision. (Y Y [2020] ZAGPJHC 216)

The internal appeal is not a tollbooth on the road to court. It is the one point in the whole process where you can, without paying litigation fees and without cost risk, lay all your evidence before the decision-maker at once.

Sources

• Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC); 2009 (12) BCLR 1192 (CC); [2009] ZACC 23 (25 August 2009)
• Mushore v Minister of Home Affairs and Another (2694/22) [2022] ZAWCHC 267 (2 November 2022)
• The Refugee Appeal Board of South Africa and Others v Mukungubila [2018] ZASCA 191; 2019 (3) SA 141 (SCA)
• Y Y (born C) v Minister of Home Affairs and Others (32581/19) [2020] ZAGPJHC 216 (16 September 2020)
• Johnson and Others v Minister of Home Affairs; In re: Delorie and Others (10310/2014; 10452/2014) [2014] ZAWCHC 101 (30 June 2014)
• Immigration Act 13 of 2002 ss 8(3)–(6), 19(4), 30(1)(h), 30(2); Immigration Regulations 2014 regs 7(3), 9(5)(a), 18, 27(3)
• Promotion of Administrative Justice Act 3 of 2000 ss 6(2), 7(1), 7(2); Constitution s 33(2); Uniform Rules of Court, rule 53

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.