A German national who wants to open a guesthouse in South Africa has won her case against the Department of Home Affairs. In a judgment handed down on 10 November 2026, the Western Cape High Court set aside the refusal of her business visa application and gave the Director-General 20 days to reconsider the application and give her a new decision.
Craig Smith & Associates acted as the attorneys in this matter. The ruling matters to every foreign investor, entrepreneur and family member who has received a refusal letter from Home Affairs or a South African mission abroad.
What happened in the case
Johanna Kerstin Schinker applied for a business visa under section 15 of the Immigration Act. She lodged the application at the South African embassy in Berlin. Her plan was to establish and run a guesthouse in South Africa.
The embassy refused the application in a notice dated 3 November 2025. The refusal notice gave three reasons:
- no proof that 60% of staff would be South African citizens or permanent residents
- no evidence of registration with the South African Revenue Service or the Companies and Intellectual Property Commission
- insufficient proof of investment
With our firm as her attorneys, Ms Schinker took the refusal on review to the High Court. Judge Phillipa Susan Van Zyl ruled in her favour.
Finding 1: the official had to show authority to refuse
The court did not decide whether the guesthouse plan was good enough or whether the requirements mentioned in the refusal even applied to Ms Schinker’s application. The court agreed with Ms Schinker that the refusal was a non-decision, whatever reasons were given, because the immigration official who made it had no authority to do so.
The Immigration Act gives the power to issue or refuse a business visa to the Director-General of Home Affairs. The Director-General may delegate that power to other officials. In this case, Home Affairs put up no evidence that the power had been delegated to the immigration officer who signed the refusal notice in Berlin.
Officials at a mission may check an application against the documentary requirements and ask for more information. They cannot refuse a business visa without the necessary statutory authority. The court declared the purported decision invalid and set it aside.
Finding 2: you cannot be forced to appeal a decision that does not exist
Home Affairs argued that Ms Schinker went to court too early. In its view she should first have used the internal remedies in the Immigration Act: a review by the Director-General, followed by a further review by the Minister.
The court rejected this argument. The internal review process assumes that an authorised official has made a valid decision. Here there was no valid decision to review, so there was nothing to take through the internal process.
This is an important point, but a narrow one. In most cases the courts still expect applicants to exhaust internal remedies before litigating. The exception applied because the refusal itself was invalid.
The second case: a permanent residence refusal based on the wrong test
The same judgment dealt with a separate application by a French national, Thibaud Luciani. He is the son of a South African permanent resident and applied for permanent residence under section 27(g) of the Immigration Act. That section covers relatives of citizens and permanent residents within the first step of kinship.
The Director-General refused the application because Mr Luciani had not submitted a valid relative’s visa. Mr Luciani argued that he could not appeal the decision to the Director-General as required in section 8(4) of the Immigration Act, as the Director-General had already made the initial decision to refuse his permanent residence permit application. It would be procedurally defective to require the same person who refused the application to review his own decision. There was therefore no internal remedy for Mr Luciani to follow. His only recourse was to go to court.
The court also found that the Director-General made an error of law in refusing Mr Luciani’s application. Neither section 27(g) of the Immigration Act nor the Regulations contain the requirement the Director-General relied on to refuse Mr Luciani’s application. The refusal was set aside and the Director-General must reconsider the application within 20 days.
Home Affairs and the Minister were ordered to pay the costs of both applications.
What the ruling does not do
It is worth being clear about the limits:
- The court did not grant the business visa or the permanent residence permit. Both applications go back to the Director-General for a fresh decision.
- The ruling does not relax the business visa requirements. An applicant must still meet the investment, employment and registration requirements in the Act and regulations.
- A fresh decision by a properly authorised official could still be a refusal. If it is, the normal review and appeal routes will then apply.
What this means if your application has been refused
- Read the refusal letter closely. Who signed it, and in what capacity? Does it state the legal provision the decision was made under? Does it give reasons you can test against the Act and the regulations?
- Check the reasons against the law, not against office practice. The Luciani matter shows that Home Affairs sometimes refuses applications for failing a requirement the law does not contain. If the reason in your letter does not appear in the Act or the regulations, the decision may be reviewable.
- Watch the clock. A request for internal review generally has to be made within 10 working days of receiving the decision. A High Court review under the Promotion of Administrative Justice Act should be brought without unreasonable delay and within 180 days. Missing these deadlines can end a strong case.
- Do not skip the internal process without advice. Going straight to court worked here because the decision was invalid from the start. In an ordinary case, a court can refuse to hear you until the internal remedies are complete.
- Fix what can be fixed. Many business visa refusals come down to documents: the investment threshold (currently R5 million unless reduced or waived), the commitment that at least 60% of staff will be citizens or permanent residents, the recommendation from the Department of Trade, Industry and Competition, and registration with SARS and the CIPC. Sometimes a stronger fresh application is quicker than a court case. Sometimes it is not. That is a judgment call to make with an immigration attorney.
If your refusal was issued while you are inside South Africa, your stay may be at risk while you challenge it.
Why this matters for investors
South Africa says it wants foreign investment and tourism businesses. A guesthouse that employs local staff is exactly that. Yet applicants regularly receive short, template refusals from officials whose authority is never explained. This judgment confirms that a refusal must come from the right person, for reasons the law recognises. Where it does not, the courts will intervene and Home Affairs will pay the costs.
Speak to an immigration attorney about your refusal
Craig Smith & Associates were the attorneys in this case. We advise investors, entrepreneurs and families on business visas, permanent residence, internal reviews and High Court challenges against Home Affairs, as we did successfully for Ms Schinker and Mr Luciani. If your application has been refused, or you want it prepared properly the first time, book a consultation with our team. Bring your refusal letter and a copy of what you submitted.