The Gqeberha high court has ruled in favour of a foreign national who applied for an order compelling the department of home affairs to review its rejection of his application for a visa extension.
The September 15 judgment came as a glimmer of hope for Chika Emenaha, whose wife, Ayanda Dupa-Emenaha, was murdered earlier in 2023.
Her body, burnt beyond recognition, was found in bushes along the old Coega road in July.
The 52-year-old Nigerian national approached the high court after receiving a letter from home affairs stating that his application to extend his visa was unsuccessful.
According to court papers, Emenaha had been suspected of tampering with the visa but no further particulars were provided in relation to the allegation.
It was not the first time Emenaha, who first arrived in SA in 2000 seeking asylum, had applied for an extension of his visa.
After arriving in Gqeberha, he applied for refugee status at the Refugee Reception office and was granted a temporary asylum-seeker’s permit, which was extended from time to time.
Later, as a result of his 2006 marriage to SA-born Ayanda Dupa, Emenaha applied for — and was granted — a visitor visa in 2007.
He later applied for it to be extended while living temporarily in Johannesburg.
The burnt body of Dupa-Emenaha, 35, was found on July 25 and her identity was later verified through fingerprints.
She had left her place of work on July 23 at about 5.30pm and dropped off a colleague in Rink Street.
Police spokesperson Colonel Priscilla Naidu said at the time that Dupa-Emenaha had indicated to her friend that she was going to Westbourne Road before returning home.
She never made it home and was reported missing the next day.
No-one has been arrested for Dupa-Emenaha’s murder and the investigation continues.
The couple had two children, a 16-year-old son and a daughter, 10.
Emenaha said in his application to the high court that on May 4, 2021, he received the letter stating that his application for an extension of his visa had been rejected.
He was advised that he could, within 10 working days on receipt of the letter, make written representations to the director-general of home affairs, to review the decision by submitting an appeal through the VFS online portal.
Emenaha attempted to access the online portal on June 4 2021, 23 working days after receiving the rejection letter.
However, the portal was inaccessible by that time because the 10-day period had lapsed.
In representations to the director-general on August 24 2021, Emenaha said he had failed to lodge the application within 10 days because he had come into contact with a friend who had tested positive for Covid-19.
He said he could only make the review application at an internet cafe, where he would be assisted.
Emenaha’s review application was finally served by the sheriff on a legal clerk at home affairs on September 2 2021.
He did not receive any acknowledgment or response from the department.
In opposing his application to the high court, lawyers for home affairs said Emenaha had failed to exhaust the internal review process as provided for in terms of the Immigration Act, that his application was premature and relied on certain provisions of the Promotion of Administrative Justice Act.
Judge Vuyokazi Noncembu dismissed the department’s reliance on the legal provisions, describing them as being “misplaced”.
“A further concern that is worth noting is that the [director-general], in his affidavit, does not even address the unmotivated, unreasoned rejection of [Emenaha’s] visa application which the applicant raises,” the judge said.
Noncembu ordered the department to consider and decide on Emenaha’s review application within 30 days and that it pay the costs of the application.
HeraldLIVE