High Court Ruling on Negative Labour Recommendations: A Game-Changer for Immigration Applicants
If you have ever struggled with a negative recommendation from the Department of Labour while applying for a work visa, you know how challenging it can be to navigate the immigration system. In the recent matter of DSR Beleggings (Pty) Ltd v Minister of Labour and Others, under Case No. 12345/2025 (heard before Kilmartin AJ and judgement on the respondent’s point in limine handed down on 14 February 2025), the High Court confirmed that the judiciary has the power to review and set aside negative recommendations, even where the Department of Labour previously claimed no court review was possible.
Significantly, Mc Menamin Van Huyssteen & Botes (MVB) Attorneys acted on behalf of DSR Beleggings (Pty) Ltd in this matter, ensuring that their client’s rights were protected.
1. The Background: Why This Matters
When a foreign national applies for a work visa or certain other permits in South Africa, the Department of Labour (DoL) must issue a recommendation to the Department of Home Affairs (DHA). This recommendation essentially decides whether a local citizen could fill the foreign national’s position instead.
- The Problem:
Until now, if the DoL’s recommendation was negative, the Department maintained that the only way to challenge it was through an internal appeal in terms of the Immigration Act via Home Affairs, effectively shutting out court intervention.
- The Judgment:
In DSR Beleggings (Pty) Ltd v Minister of Labour and Others (Case No. 12345/2025), the High Court ruled that these negative recommendations can be brought before the court for judicial review, upholding the principle that no administrative body is beyond the reach of the courts. MVB Attorneys were instrumental in securing this landmark clarification on behalf of their client.
2. The Legal Questions at Stake
- Jurisdiction of the High Court
The court clarified that it does have the jurisdiction to review and set aside negative recommendations. If the recommendation was made unfairly, irrationally, or unconstitutionally, PAJA (the Promotion of Administrative Justice Act) allows applicants to have their case heard.
- Access to Fair Processes
Whether you are an individual seeking a permit or an employer looking to bring in foreign expertise, a negative recommendation can stall or even end your application. This ruling ensures you can turn to the courts without being stuck in a drawn out internal Home Affairs appeal process with a guaranteed negative result due to the negative DoL recommendation.
- Constitutional Rights
Section 34 of the Constitution provides for access to courts, and the High Court emphasized that internal processes cannot override or limit your constitutional right to challenge decisions that significantly affect your life or livelihood.
3. Key Highlights of the Judgment
- Administrative Decisions Are Reviewable:
No matter how ‘final’ a government department claims its recommendations to be, administrative justice remains subject to the Constitution.
- Procedural Fairness is Crucial:
Applicants who feel the process was not handled properly – whether due to a lack of notice, insufficient reasons, or other irregularities – can seek legal remedies.
- Balancing Internal Remedies and Judicial Intervention:
While internal appeals through the DHA might still be an option, this ruling clarifies that a direct approach to the High Court is valid, especially when the internal remedy does not offer adequate relief or is unduly prolonged.
4. Real-World Implications
- Protects the Rights of Foreign Nationals:
Individuals no longer need to accept negative labour recommendations as a dead-end. They have a clear legal pathway to challenge it in court.
- Guidance for South African Employers:
For businesses that rely on specialized foreign skills, this provides a safety net. If your chosen candidate is hit with a negative recommendation from the DoL, the High Court may serve as an effective recourse.
- Ensures Government Accountability:
The judgment reaffirms that government decisions must align with the Constitution. Departments like Labour or Home Affairs must ensure fairness, transparency, and rationality in their processes.
A Final Word
The DSR Beleggings (Pty) Ltd v Minister of Labour and Others judgment is a critical milestone in safeguarding applicants’ rights in the South African immigration process. By confirming that no administrative recommendation is beyond legal scrutiny, the judgment ensures that constitutional values such as fairness and accountability, remain at the heart of immigration procedures. MVB Attorney’s representation and successful argument in court highlight the crucial role legal counsel plays in navigating the complexities of the system.
At Mc Menamin Van Huyssteen & Botes Attorneys, we specialize in High Court Reviews of adverse Department of Labour recommendations and other critical administrative decisions that impact immigration status. Our expertise ensures that negative recommendations can be legally challenged and set aside where they fail to meet constitutional and administrative justice standards.
Our Core Services Include:
- Judicial Reviews of Department of Labour Recommendations or Home Affairs Ministerial decisions
- High Court Applications for Immigration
- Work Visas (All Categories)
- Permanent Residence Permits (All Categories)
- General Immigration Appeals & Litigations
Our seasoned team has over three decades of experience navigating South Africa’s complex immigration system – delivering comprehensive legal guidance from permit applications to court reviews.
Contact Us for Expert Legal Assistance:
Tel: +27 12 344 0525
Cell: +27 83 228 7050
Email: mvh@mweb.co.za or elria@mvh.co.za
With MVB Attorneys, you will have experienced attorneys in your corner, ready to take on any immigration or review challenge that stands between you and a secure future in South Africa.