When Will a Court Order Your Permit Directly? The Trencon Four Requirements

When Will a Court Order Your Permit Directly? The Trencon Four Requirements and Three Successful Substitution Orders

Mukungubila [2018] ZASCA 191 | A.K [2023] ZAWCHC 52 | Z.H [2022] ZAWCHC 150 | Ling [2022] ZAWCHC 177. Once a decision is set aside, whether the court remits it or substitutes its own order determines how much longer you must wait.

You win the review. The court sets aside the Department of Home Affairs' decision — and then what?

In the overwhelming majority of cases, the court will remit the matter to the Department to decide afresh. You are back at square one, facing the same officials, the same process, and another year of waiting. Some applicants have cycled through set-aside and remittal two or three times over.

But the court has another option: substitution — making the decision that the administrator ought to have made, and ordering directly that the visa or permanent residence be issued. This article is about the circumstances in which a court is willing to do exactly that.

Part 1 — Why Courts Are Reluctant to Substitute in Principle

The answer is the separation of powers. Issuing a visa is an executive function, not a judicial one. If a court readily substituted its own decision for that of an administrator, it would be usurping a power that is not its own. For that reason, PAJA makes substitution the exception rather than the norm.

§ Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c)(ii)(aa)

In proceedings for judicial review, the court may grant any order that is just and equitable, including, in exceptional cases, an order substituting or varying the administrative action.

The meaning of "exceptional cases" was systematised by the Constitutional Court in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd (2015). Although not an immigration matter, its framework has become the general standard in South African administrative law.

Part 2 — The Trencon Four Requirements

The four gates the court sets for itself.

1. Is the court in "as good a position" as the administrator? If the specialist judgement, technical assessment or policy weighing needed to make the decision is something the court does not possess, substitution is inappropriate. Conversely, where the question is one of pure legal application, or the facts are entirely clear, the court is in as good a position.
2. Is the outcome a "foregone conclusion"? If, on remittal, the administrator could lawfully reach only one conclusion, then remittal merely adds delay. This is the hardest requirement to establish in practice — you must tick off each statutory requirement in turn and show that "approval is the only possibility".
3. The prejudice caused by delay. How long has the applicant already waited? How much longer would remittal take? Prolonged delay is itself a factor in favour of substitution.
4. The conduct of the administrator. Is there bias, incompetence, or capricious conduct? Where a matter has been remitted before and the administrator has again dealt with it perfunctorily, the court's willingness to substitute rises markedly.

Part 3 — Mukungubila: The Supreme Court of Appeal Tightens the Threshold

Case file

• Case name: The Refugee Appeal Board of South Africa and Others v Mukungubila
• Citation: (185/2018) [2018] ZASCA 191; 2019 (3) SA 141 (SCA)
• Court: Supreme Court of Appeal | Maya P, Wallis, Mbha, Schippers JJA, Mothle AJA
• Date: 19 December 2018
• Issue: May the High Court substitute its own decision for that of the Refugee Appeal Board and grant refugee status directly?
• Outcome: No. The High Court's substitution order was set aside and the matter remitted to the Board to hear the appeal under s 26.

The case has two levels. The first favoured the applicant: the court held that the reasons given by the RSDO (Refugee Status Determination Officer) were "unintelligible, offering conclusions without reasoning", which constituted a reviewable defect; and that the exclusion decision could be pursued through the internal remedy of an appeal to the Board.

The second level tightened substitution. The High Court had granted refugee status directly, but the Supreme Court of Appeal held this to be inappropriate and premature: the determination of refugee status involves specialist judgements about country-of-origin conditions and applicant credibility that place the court in something less than "as good a position"; and before the Board had heard the appeal, the outcome was far from a "foregone conclusion".

What this means in practice

Any notice of motion seeking an order "directing the respondent to issue a visa / permanent residence / status" must first clear the Mukungubila hurdle.

The pragmatic approach is to plead alternative relief: as a primary prayer, substitution directing issue; as an alternative prayer, review and setting aside with remittal subject to a time limit. That way, even if the court declines to substitute, you still secure a remittal order with a deadline.

Part 4 — Three Immigration Judgments Where Substitution Succeeded

A.K: A Declaration That "You Are Not a Prohibited Person", With Authorised Residence Within 10 Days

This case was introduced in Part 1 of the series ([2023] ZAWCHC 52; 2023 (3) SA 538 (WCC)). The work visa that a Russian mother had obtained through an agent turned out to be fraudulent; the applicant was unaware of this and was listed as a prohibited person.

Francis J held that the Director-General had treated the mother's two South African children as mere "appendages", without independently assessing their best interests; and that "a mere suspicion, however genuinely held, cannot without more be elevated into a finding of fact". Applying the Trencon framework, the court declared directly that the applicant was not a prohibited person, and ordered the Director-General to authorise her residence in South Africa under s 32(1) within 10 days, restraining her deportation.

What satisfied Trencon here was this: the elements of s 29(1)(f) and the good cause requirement of s 29(2) are both questions of law, the facts were entirely clear, and the court was in as good a position; and since collusion was not made out and the children's interests pointed overwhelmingly in one direction, the outcome was already a foregone conclusion.

Z.H: Family Members' Applications "Inextricably Linked", Exempted From Exhausting Internal Remedies

Companion case

• Case name: Z.H and Others v Minister of Home Affairs and Another
• Citation: (15279/2021) [2022] ZAWCHC 150; [2022] 4 All SA 129 (WCC)
• Court: Western Cape Division, Cape Town | Van Zyl AJ | 20 July 2022
• Parties: A Bangladeshi family of five, resident in South Africa since 2009
• Outcome: Declared not prohibited persons; the Director-General ordered to issue permanent residence permits to all five applicants

This case yields four highly practical rules.

1. A foreign national is generally permitted to remain in South Africa while review proceedings are pending. The Minister had refused on the ground that the applicants were "residing unlawfully"; the court held this to be wrong — a residence status held while judicial review is pending cannot be turned around and used to defeat the application.
2. "Found in possession" has three elements. Section 29(1)(f) requires that a person be found, presently in possession, and in direct control. A visa that had already expired in 2014 could not constitute being "found in possession" in 2019. This is an important narrowing of the strict liability under that provision.
3. PAJA s 9 can condone a 180-day delay. The court granted condonation here. Compared with Mugunzva in Part 1 (a delay of 825 days, condonation refused), the lesson is that condonation is not impossible, but the explanation must be consistent with the evidence.
4. Where family members' applications are "inextricably linked", this constitutes an exception to exhausting internal remedies. The five family members' applications were inextricably linked; requiring each to run the internal-remedy course separately would be procedurally unworkable. This gives concrete content to the "exceptional circumstances" in PAJA s 7(2)(c).

Ling: Factual Error + Three-and-a-Half Years' Delay = Issue Within 20 Working Days

Detailed in Part 4 ([2022] ZAWCHC 177). A Singaporean couple of Chinese descent applied for permanent residence under s 27(f) and s 26(b); the Department of Home Affairs refused on the ground that their bank statements were falsified — yet the bank subsequently confirmed the statements were genuine. The court set aside the refusal and ordered the permanent residence permits to be issued within 20 working days.

The common thread across the three cases is worth drawing out: none of them required the court to make a specialist judgement. Whether a person holds a forged document, whether a bank statement is genuine, which way a child's best interests point — these are all matters the court is fully able to determine. By contrast, the refugee-status determination in Mukungubila required specialist assessment of country conditions and applicant credibility. That line is the key to understanding whether substitution will succeed.

Part 5 — Practical Suggestions for the Notice of Motion

Five steps to seeking substitution:

1. Primary prayer: setting aside + substitution. Ask the court expressly, under PAJA s 8(1)(c)(ii)(aa), to substitute its own decision for the administrative action, and state a specific time limit (e.g. "directing the first respondent to issue... within 10 days").
2. Alternative prayer: setting aside + remittal subject to a time limit. If the court declines to substitute, fall back on a remittal order with a deadline. For the deadline, cite De Saude (30 days for temporary residence, 60 days for permanent residence).
3. Argue each of the Trencon four requirements in the affidavit, point by point. Do not simply write "the court should decide the matter directly". Set out: (a) why the court is in as good a position; (b) why the outcome is already a foregone conclusion (ticking off each statutory requirement); (c) how long the delay has been; and (d) how the Department has conducted itself to date.
4. Obtain the full record under Uniform Rule 53. The evidence for points (b) and (d) is almost entirely in the record — internal assessment sheets, memoranda, delegation documents, and any earlier remittal history.
5. Ask for costs at the same time. Several judgments already covered in this series ordered the Department to pay costs; in Xiuguo, costs were even awarded on the punitive attorney-and-client scale.

Practical points for applicants

• Substitution is the exception, but it is not uncommon in immigration cases. The successful cases located in this research were concentrated in the Western Cape High Court — A.K, Z.H and Ling all came from that court.
• The most powerful ground for substitution is that "the outcome is already a foregone conclusion". When preparing your papers, list the statutory requirements as a checklist and attach evidence to each, so that the court sees that "approval is the only possibility".
• The best interests of children are a powerful lever. Both A.K and Lu were overturned because the Department failed to independently assess the best interests of children; in A.K, this directly supported substitution.
• "Found in possession" can be contested. The three-element test established in Z.H ("found + presently in possession + direct control") is highly useful where documents that expired years ago are dredged up.
• Always plead in the alternative. Seek substitution alone, without an alternative, and if the court disagrees you may not even secure a time-limited remittal.

The choice between remittal and substitution is, at bottom, a single question: is there any point in handing the decision back to the very body that already got it wrong once? The court's answer is usually "yes" — but when delay, perfunctory conduct and an obvious conclusion converge, it will also say "no".

Sources

• Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC); [2015] ZACC 22
• The Refugee Appeal Board of South Africa and Others v Mukungubila (185/2018) [2018] ZASCA 191; 2019 (3) SA 141 (SCA) (19 December 2018)
• A.K and Others v Minister of Home Affairs and Another (2693/2022) [2023] ZAWCHC 52; 2023 (3) SA 538 (WCC); [2023] 2 All SA 349 (WCC) (10 March 2023)
• Z.H and Others v Minister of Home Affairs and Another (15279/2021) [2022] ZAWCHC 150; [2022] 4 All SA 129 (WCC) (20 July 2022)
• Ling and Another v The Director-General of the Department of Home Affairs and Another (6928/2022) [2022] ZAWCHC 177 (9 September 2022)
• Director-General of the Department of Home Affairs and Others v De Saude Attorneys and Another [2019] ZASCA 46; [2019] 2 All SA 665 (SCA)
• Promotion of Administrative Justice Act 3 of 2000 ss 7(2)(c), 8(1)(c)(ii)(aa), 9; Immigration Act 13 of 2002 ss 29(1)(f), 29(2), 32(1); Uniform Rules of Court, rule 53

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.