EFL South Africa NPC trading as "Education South Africa" v Minister of Home Affairs and Others (Reasons) (7204/2021) [2024] ZAWCHC 317 (20 September 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NUMBER: 7204/2021

In the matter between:

EFL SOUTH AFRICA NPC trading as “EDUCATION SOUTH AFRICA” Applicant and THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR GENERAL OF HOME AFFAIRS Second Respondent THE IMMIGRATION ADVISORY BOARD Third Respondent THE DEPUTY DIRECTOR-GENERAL: IMMIGRATION SERVICES Fourth Respondent THE MINISTER OF HIGHER EDUCATION AND TRAINING Fifth Respondent THE DIRECTOR-GENRAL OF THE DEPARTMENT OF HIGHER EDUCATION AND TRAINING Sixth Respondent THE COUNCIL FOR QUALITY ASSURANCE IN GENERAL AND FURTHER EDUCATION AND TRAINING Seventh Respondent THE COUNCIL ON HIGHER EDUCATION Eight Respondent THE QUALITY COUNCIL FOR TRADES AND OCCUPATIONS Ninth Respondent THE MINISTER OF INTERNATIONAL RELATIONS & COOPERATON Tenth Respondent THE ACTING DIRECTOR-GENERAL OF THE DEPARTMENT OF INTERNATIONAL RELATIONS & COOPERATION Eleventh Respondent

REASONS FOR THE ORDER OF 2 DECEMBER 2021

KUSEVITSKY J

History of this application

[1] On 16 November 2021, this matter was set down on the semi-urgent roll for hearing. On the day, junior counsel for the Respondents advised that their senior counsel was in London and sought a postponement until he was available. The matter stood down in order for the parties to firstly, take instructions as to whether Ms Adikari would seek the postponement or proceed to argue the matter. The parties were also urged to try and settle the matter.

[2] When the matter resumed, the parties advised that they were unable to settle the matter and that Ms Adikari would argue the application. The parties agreed that given the complexity of the matter, as well as timeframes and constitutional issues raised in the application, that this Court could give an Order in terms of Part A of the relief sought, with Part B standing over for later determination.

[3] After the matter was ventilated, the parties provided a draft order due to the urgency of the matter, which order was made an Order of Court on 2 December 2021. The Order reads as follows:

“HAVING READ THE PAPERS FILED OF RECORD AND AFTER HEARING COUNSEL FOR THE APPLICANT AND THE 1ST TO 6TH RESPONDENTS, IT IS ORDERED THAT:

“1. Pending the final determination:

1.1 The Fifth and Sixth Respondents will renew and/or extend the provisional registration of the Applicant and its members, provided they comply with the terms stipulated in their existing letters of provisional registration;

1.2 The First, Second and Fourth Respondents will consider the study visa applications of prospective students of the Applicant and its members on their merits and accept that the Applicant and its members qualify as “learning institutions” for the purposes of the Immigration Regulations for so long as they remain registered with the Department of Higher Education and Training;

1.3 The First, Second and Fourth Respondents must bring this order to the attention of adjudicators within the Department of Home Affairs responsible for the adjudication of study visas; and

1.4 the Tenth and Eleventh Respondents must ensure that this order be brought to the attention of the officials at South African embassies, consulates and other foreign offices responsible for visa-related matters.

2. Costs to stand over for later determination.”

[4] It is common cause that the parties did not proceed with PART B of the application and that for all intents and purposes, at least as far as this court was concerned, that was the end of the matter.

[5] Then on 28 December 2023, the Applicant brought an urgent application, ostensibly on the same basis as was argued in 2021. The submissions made to the urgent duty Judge was that the parties were “still awaiting adjudication of the previous matter”. That was to say, this matter. The matter was postponed to 24 January 2024 and a timetable set for the further conduct of the matter. In the meantime, the parties’ legal representatives were called to address this Court on the matter and the parties’ assertion that they were ‘still awaiting judgment’. When asked as to what had occurred from the time that the order was made in 2021 to the time that the urgent application had been brought in 2023, the legal representative for the Applicant stated that they had ‘forgotten about the matter’. Similarly, the State Attorney advised that they had archived the file and that they too had ‘forgotten about the matter’. This very important aspect was, conveniently and deceptively, not conveyed to the presiding officers that subsequently dealt with the matter. Rather, the parties attempted to lay the blame for their tardiness at the foot of this court. So too could the parties not explain why they would request reasons for a draft in which they prepared, and in any event, they could not present a notice indicating where and when their “Request for Reasons”, if so sought, were in fact filed. It was not.

[6] It is as a result of the diabolical handling of the matter by the respective attorneys concerned that I now attend to the reasons for the order granted on 2 December 2021.

The relief sought

[7] The Applicant sought the following orders in the notice of motion:

“2. That the Honourable Court direct:

2.1 the Fifth and Sixth Respondents (Department of Higher Education) to renew and extend the provisional registration of the Applicant and its members as private colleges, provided they comply with the terms stipulated in their existing letters of provisional registration; and

2.2 the First, Second and Fourth Respondents (Department of Home Affairs) to consider study visa applications of prospective students of the Applicant and its members on their merits and to accept that Applicant and its members qualify as ‘learning institutions’ for the purposes of the Immigration Regulations for so long as they remain registered with the Department of Higher Education and

Training.

3. In the alternative to paragraph 2 above, and in the event that the Honourable Court declines to grant such relief, then and in that event the Applicant will seek declarations of constitutional invalidity of:

3.1 The Skills Development Act, 97 of 1998, to the extent that it fails to provide for the registration of private skills development providers, such as the Applicant and its members, in fulfilment of the constitutional imperative contained in section 29 (3) of the Constitution and of the corresponding right of the Applicant and its members to such registration;

3.2 The definition of ‘learning institution’ in the Immigration Regulations (published in GNR.413 of 22 may 2014: Government Gazette No. 37679), to the extent that it excludes constitutionally recognized independent educational institutions provided for in section 29 (3) of the Constitution, such as the applicant and its members; and/or

3.3 Conditionally upon the upholding by the above Honourable Court of the relief in paragraph 3.1 above, the definition of ‘learning institution’ in the Immigration Regulations, to the extent that it excludes institutions such as the Applicant and its members who all entitled to registration under a constitutionally compliant Skills Development Act.

5. The Honourable Court direct that:

5.1 the First, Second and Fourth Respondents ensure that any order made pursuant to this application be brought to the attention of adjudicators within the Department of Home Affairs responsible for the adjudication of study visas; and

5.2 the Tenth and Eleventh Respondents ensure that any order made pursuant to this application be brought to the attention of the officials at South African embassies, consulates and other foreign offices responsible for visa-related matters.

6. In the event that the substantive relief in paragraphs 2 to 4 above cannot be finally determined before 31 December 2021, then and in such event the Applicant will set the matter down for hearing on an urgent basis and seek an order that:

6.1 Paragraphs 2.1 and 2.2 above shall operate as interim order pending the final determination of this application; and

6.2 The directions contained in paragraph 5 above shall apply mutatis mutandis to the order for such interim relief.”

[8] From the relief sought in the notice of motion, it is clear that an order was granted in terms of the relief sought in paragraphs 2.1 and 2.2 of the Notice of Motion as read with paragraphs 5.1 and 5.2 which deals with the service of the Order to the relevant officials.

Factual background

[9] The Applicant is a non-profit organization which has as its members, a number of institutions providing tuition in English as a foreign language to foreign students from around the world who are desirous of learning English in an English-speaking environment. Applicant’s members operate in the Edu-tourism industry, teaching English as a foreign language (“EFL”). According to the founding affidavit, the EFL industry is global and highly competitive. The Applicant’s members compete with similar institutions in a number of countries such as Australia and New Zealand who also offer the opportunity for foreign students to learn English in an English-speaking environment.

[10] The courses offered by the Applicant and its members ranges for periods from two weeks to one year and prospective students require a study visa to enable them to remain in South Africa long enough to compete their EFL courses. Each student resides in South Africa for the duration of the EFL course. The Applicant states that the industry brings in hundreds of millions of Rand in foreign investment into the local economy each year.

[11] Typically, prospective students are able to travel to South Africa on a visitor’s visa, which could last up to 6 months in order to participate in the EFL courses presented by the Applicant’s members. In the majority of cases, these visas are not of a sufficient length for students to compete their courses and it is therefore not possible for most prospective students to travel to South Africa on a visitor’s visa. Applicant argues that it is thus imperative for the continued functioning of the

Applicant’s members that prospective students can obtain study visa’s which permit longer stays in South Africa in order that such students have sufficient time to compete these EFL courses.

[12] Since 1994, the Applicant’s members had operated as EFL service providers, with students able to obtain study visas at Applicant member institutions, until the promulgation of Regulations under the Immigration Act, 13 of 2002, in May 2014, which for the first time defined the term “learning institutions” for the purposes of the Immigration Act.

[1] In its previous form as a voluntary organisation. Now it is a non-profit company

[2] Under case number 12484/2016

[3] Published in Government Notice R413 in Government Gazette 37679 of 22 May 2014

[4] Section 3(1) of the NFQ Act

[5] With either the Services SETA or the Education, Training and Development Practices SETA

[6] The view was that the Applicant and its members were clearly not schools under the auspices of the Department of Basic Education but rather learning centres or community education and training colleges (“CETs”). All CETs and higher education institutions and skills development providers fall within the ambit of the DHET Minister’s mandate. Eduschools are adult learning places or learning institutions, formerly known as Technical and Vocational Educational and Training Colleges or TVET colleges or Community Education and Training Colleges (CETs) or Universities and Universities of Technology and Skills Development Institutes and Skills Development providers. The Applicant and its members would therefore be classified under one of these aforementioned types and not generally called learning institutions.

[7] Paragraph 38 of the answering affidavit in the first application

[8] Act 108 of 1996

[9] Regulations for the Registration of Private Further Education and Training Colleges, 2007

[10] at para 19

[11] In terms of section 3(1) of PAJA