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[2015] ZAWCHC 190
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Tshiyombo v Members of the Refugee Appeal Board and Others (13131/2015) [2015] ZAWCHC 190 (17 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 13131/2015
DATE:
17 DECEMBER 2015
In
the matter between:
KENNEDY
TSHIYOMBO
.......................................................................................................
Applicant
And
THE
MEMBERS OF THE REFUGEE APPEAL BOARD
...................
First
to Fourth Respondents
AND
FOUR
OTHERS
...............................................................................
Fifth
to Eighth Respondents
JUDGMENT
(On
Issues Stood Over for Latter Determination in the Judgment Delivered
on 18 November 2015)
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
10 December 2015
Judgment
delivered: 17 December 2015
BINNS-WARD
J:
[1] On
18 November 2015 I handed down judgment reviewing and setting aside
the refusal by the Refugee Appeal Board of the appeal
to it by the
applicant from the decision of the refugee status determination
officer that his application for refugee status was
unfounded. A
substitutive order was made granting the applicant asylum. The
judgment has been published on the SAFLII website,
sub nom. Tshiyombo
v Members of the Refugee Appeal Board and Others
[2015] ZAWCHC 170
(18 November 2015).
[2] As
described in the earlier judgment, the respondents had been party to
taking an order by consent before Dlodlo J as to the
further conduct
of the review application so as to render it ready for hearing on 10
November 2015. They failed to comply with
the terms of the order.
In particular, they did not file the administrative record that they
were obliged to have done in terms
of rule 53(1) of the Uniform Rules
of Court and the terms of paragraph (a) of the court’s order.
They also did not deliver
the answering papers, to which the terms of
the order had committed them, or if they had changed their minds
about opposing the
application, give notice of the abandonment of
their opposition to the review. That resulted in the application
unnecessarily
remaining enlisted for hearing in the opposed motion
court. The prejudicial consequences of the respondents’
failure to
comply with the rules of court and the order to which they
had agreed were set out in the earlier judgment.
[3] The
first to sixth respondents (viz. the members of the Refugee Appeal
Board, the refugee status determination officer and the
manager of
the Cape Town refugee reception centre) were called upon in the
earlier judgment to show cause on 10 December 2015 why
they should
not be ordered to be personally liable for the additional costs
incurred by the applicant as a consequence of the matter
having had
to be heard in the opposed motion court rather than in the unopposed
motion court. All of the respondents were called
upon to show cause
on the same date why the Registrar should not be directed to forward
a copy of the judgment to the Public Protector
for her to consider
investigating the evident systemic dysfunctionality in the Department
of Home Affairs’ administration
of matters in which decisions
concerning applications for asylum in terms of the
Refugees Act 130
of 1998
are taken on judicial review. (The indications of the
existence of systemic dysfunctionality were described in the earlier
judgment.)
[4] In
response to the notice to show cause, an affidavit by Ms Yvonne
Banyamme Seboga was placed before the court. Ms Seboga is
a senior
legal administration officer in the Department of Home Affairs. Her
affidavit was supported by a confirmatory affidavit
by Mr Kabelo Sam
Mogotsi, the Director: Litigation in the Department. Senior and
junior counsel appeared for the respondents on
10 December 2015.
Counsel put in written argument in addition to their oral
submissions. This judgment is concerned with the
matters that were
stood over for later determination in the judgment of 18 November.
[5] It
is convenient to deal first with two legal contentions advanced by
the respondents’ counsel before examining the factual
considerations relied upon by Ms Seboga to ward off the orders
postulated in the notices to show cause.
[6] The
first was the rather peculiar argument that the order taken by
agreement before Dlodlo J ‘ought to be construed as
a contract
rather than an order’. The respondents’ counsel sought
support for that submission in the judgment of Sholto-Douglas
AJ in
Pierre Cronje v Adonis
2010 (4) SA 249
(WCC). As I understood it,
the argument sought, by means of the characterisation contended for,
to dissipate the whiff of contempt
that hung about the respondents’
breach of the court’s order with regard to the filing of the
administrative record.
It has no merit and the judgment in Pierre
Cronje in fact contains nothing to support it.
[7] In
making the order Dlodlo J was giving directions for the further
conduct of the matter. That the directions had been formulated
in a
manner that gave effect to an agreement between the parties in no
manner detracted from their character as the terms of a
court order.
Dlodlo J was concerned with regulating the conduct of the application
so as to bring it efficiently to hearing.
He was not concerned with
making a contract for the parties. In directing that the
administrative record be filed by a given date,
the learned judge was
regulating the performance by the respondents of the obligation that
was independently imposed upon them
in terms of
rule 53(1).
The
sub-rule itself fixes the time within which the record must be
produced, but the court may in terms of
rule 27
and its common law
and constitutional authority to regulate its own procedures accede to
an application by the parties to lengthen
or shorten the time period
prescribed in the rules. That is what Dlodlo J did when he made the
order.
[8]
Pierre Cronje was a case about the interpretation of a court order.
The question in Pierre Cronje was whether a period of 30
days
referred to in an agreement which had been made an order of court was
30 calendar days, as it would be on an ordinary semantic
construction
of the deed of agreement, or 30 court days, as it would be if the
ordinary rule in respect of the construction of
court orders were
applied. It was held that because the terms of the deed had been
incorporated in a court order, the order fell
to be construed in
accordance with the rules of court concerning the computation of time
in court days. Acknowledging the existence
of apparently conflicting
authority on the point, the learned acting judge found support for
the approach he had chosen to adopt
in the fact that the agreement in
question had been concluded with the expressed intention that its
terms would be incorporated
in a court order. Neither of the parties
in Pierre Cronje had contended that the court order in issue was not
an order, but only
a contract.
[9] The
second legal contention advanced by the respondents’ counsel
was that it had been ‘incumbent’ upon the
applicant, when
the respondents failed to deliver any answering affidavits in
accordance with the timetable set out in the order,
to apply through
the chamber book for an order compelling them to do so, and entitling
him to enlist the matter for hearing on
the unopposed motion roll
should they fail to comply with the order. Counsel referred in this
regard to Western Cape Division
Consolidated Practice Note 37(19),
which provides:
Applications
may be brought through the Chamber Book in the following matters:-
…
.
(19)
applications to compel the filing of opposing papers where a notice
of opposition has been filed, but no further steps have
been taken by
the respondent, failing which the matter may be enrolled on the
unopposed roll.
[10]
Practice Note 37(19) found no application on the facts of the current
matter. PN 37(19) applies without curial intervention
when a
respondent fails to comply with the rules. It does not apply when
there already is an order in place regulating the further
conduct of
the application. It is not intended to deal with the situation that
arises when a respondent who has been party to
obtaining an order
regulating the conduct of the proceedings ignores the order. Indeed,
it would have been inappropriate for a
judge to make an order in
chambers in terms of PN 37(19) while the prior order of Dlodlo J
remained extant. It is true that the
applicant could have requested
the respondents to confirm that their failure to comply with the
existing order for the delivery
of their answering papers signified
that they no longer wished to oppose the application, and had such
confirmation been forthcoming,
he could have taken steps to obtain
the enlistment of the matter on the unopposed roll. Whether such a
request would have been
dignified with a response is doubtful in the
extreme, however. As described at length in the earlier judgment,
the State Attorney’s
repeated requests for instructions from
the respondents in this matter went unheeded. Thus, nothing in the
second contention advanced
by the respondents’ counsel
militates convincingly against the appropriateness of a de bonis
propriis costs order or a referral
of the matter to the Public
Protector for investigation.
[11] Ms
Seboga testified that the Department of Home Affairs is involved in a
large number of litigious matters in courts throughout
the country.
The matters involved concern a variety of issues. The number of
matters in which proceedings have been commenced
against the
Department annually has increased by approximately a third between
2012 and 2015. In 2012 there were 1840 new cases,
while in 2015,
2435 new matters had been instituted against the Department by the
beginning of December. The litigation is dealt
with by the office of
the Director: Litigation. The director allocates the matters to the
legal administration officers in his
unit, of whom Ms Seboga is one.
As of May 2015 there were seven legal administration officers in the
Department’s litigation
unit. Ms Seboga averred that the
officers are unable to cope with the workload. The result has been
that some officers have become
demoralised and resigned. One of the
officers resigned in May. Another one left at an unspecified date
during the year. One of
the remaining officers has been on maternity
leave since the beginning of August. No mention is made of the
vacant posts being
filled and no explanation has been offered as to
why they should not have been filled. The implication in Ms Seboga’s
evidence
is that as from the beginning of August four legal
administration officers in the Department’s litigation unit
have been
trying to cope with the work of seven officers in an
already under-capacitated office.
[12]
The affidavits of Mr Mogotsi and Ms Seboga were directed at
describing the currently under-capacitated condition of the
Department’s
litigation unit. They averred that 10 intern
posts for four-year LL.B graduates have been advertised to alleviate
the workload.
It was suggested that the additional posts might be
filled with effect from the beginning of January 2016. The
affidavits did
not explain why the problems that manifested in the
current matter are no more than yet further recurrences of the
departmental
shortcomings that have been lamented in a series of
judgments reaching back to at least 2011.
[13] Ms
Seboga admitted that the papers in the current matter had been
referred to her for management in mid-July 2015, shortly
after they
had been served at the office of the Department’s Western Cape
Provincial Manager. She had instructed the State
Attorney to agree
to an order in the terms made by Dlodlo J on 5 August 2015. She
received a copy of the order on the day it was
made. She stated that
whilst it had occurred to her that ‘serious consideration’
should be given to not opposing the
review, she did not furnish
instructions to the State Attorney ‘because [she] was simply
overburdened with work and it therefore
clearly slipped [her] mind to
do so’. Ms Seboga did not, however, offer any explanation of
how the matter could have been
persistently overlooked in the context
of the assistant state attorney’s explanation to the
applicant’s attorney that
his requests for further instructions
had gone unheeded. The failure to provide any explanation in this
respect detracts from
the plausibility of Ms Seboga’s
explanation. It was also notable that Mr Mogotsi, as head of the
litigation unit, said nothing
to indicate any appreciation of the
obvious shortcoming in his staff member’s explanation, or of
any intention to devise
and put in place systems to prevent such
delinquency recurring. If Ms Seboga’s performance as a senior
legal administrative
officer is anything to go by, what might be
expected from the interns that are reportedly to be appointed? They
will presumably
be more junior officials and comparatively
inexperienced. A meaningful improvement can be expected only if an
effective system
of training and supervision is put in place.
[14] Ms
Seboga also does not give any context to her assertion that she had
seriously considered whether the review application
should be allowed
to go unopposed. One would assume that such consideration would be
given by an official in the Department only
after obtaining and
considering the relevant record of proceedings before the refugee
status determination officer and the Refugee
Appeal Board. If Ms
Seboga already had this record, her failure to give the State
Attorney instructions in response to the applicant’s
attorney’s
correspondence about the respondents’ failure to comply with
Dlodlo J’s directions for its production
for the purposes of
the review is all the more deplorable, however heavy her workload
might have been.
[15]
Does the aforementioned explanation afford sufficient reason not to
refer the matter to the Public Protector for investigation?
[16]
The respondents’ counsel submitted in their written argument
that the administrative failures by the Department of Home
Affairs
that have manifested in the current matter do not qualify for
investigation by the Public protector in terms of
s 6(4)
of the
Public Protector Act 23 of 1994
. The submission is misconceived. In
terms of
s 6(4)
of the Act, the Public Protector is competent on her
own initiative or on receipt of a complaint to investigate any
alleged maladministration
in connection with the affairs of
government at any level or any alleged act or omission by a person in
the employ of government
at any level, or a person performing a
public function, which results in unlawful or improper prejudice to
any other person. The
failure by employees of the Department of Home
Affairs to comply with duly promulgated rules of court and duly
issued orders of
court plainly amounts to misgovernment or
maladministration. The nature of the delinquency involved equally
plainly results, or
is liable to result, in unlawful prejudice to
applicants for judicial review of administrative decisions made by
the Department.
[17]
The respects in which the explanation tendered by the Department has
been open to criticism give reason for concern whether
the Department
is able by itself, and without outside direction, to institute
effective remedial measures. The object of an investigation
by the
Public Protector is not punitive, but remedial. It is to provide
outside assistance if that is indicated.
[18] It
is evident from what Ms Seboga has described that it is she, and not
any of the first to sixth respondents personally, who
should be
responsible for the additional costs incurred as a consequence of the
unnecessary hearing of the matter in the opposed
motion court if a de
bonis propriis order is to be made. The pertinent jurisprudence was
recently comprehensively reviewed in Lushaba
v MEC for Health,
Gauteng
2015 (3) SA 616
(GJ). There is therefore no need for me to
repeat the exercise in this judgment. Robinson AJ noted, correctly,
that such an order
is not to be made lightly. It is merited only in
‘exceptional circumstances’. I think the general
position has been
fairly stated at para 69-70 of the judgment as
follows:
…
.A
legal advisor or legal representative is not to be punished with such
a costs order for every mistake or error of interpretation.
To err
is, after all, human.
[70]
But there is a limit. That limit is, to my mind, crossed when one
encounters the degree of indifference and incompetence evidenced
in
this case. Erring when trying to do one's work well is one thing. Not
even caring is quite another. The public should not have
to suffer
this complete indifference and incompetence at the hands of public
servants. In 1902 Innes CJ thought that it would be
detrimental to
the public service to 'mulct that official in costs where his action
or his attitude, though mistaken, was bona
fide'. [Coetzeestroom
Estate and GM Co v Registrar of Deeds
1902 TS 216
and see Absa Bank
and Others v Robb
2013 (3) SA 619
(GSJ) in para 14.] But
circumstances appear to have changed, with not even censure from our
highest courts being sufficient to
induce public officials to
public-minded service. Something is required to so induce them.
Perhaps the answer lies in greater accountability.
As the
authorities referred to in Absa Bank and Others v Robb supra, at para
13, illustrate, it is by no means unprecedented that
costs de bonis
propriis have been awarded against public officials where the
circumstances have warranted it. Lushaba affords
a more recent
example of a matter in which such orders were made.
[19] As
noted, the explanation offered by Mr Mogotsi and Ms Seboga for the
non-compliance with the order made by Dlodlo J is by
no means
satisfactory in material respects. There has been no explanation of
Ms Seboga’s failure to comply with requests
for further
instructions by the State Attorney. The matter cannot have entirely
‘slipped her mind’ due to pressure
of work, as she
claims. Mr Kondlo’s requests could not have served other than
as reminders, which she appears to have ignored.
The only
consideration that has made me hold back from making a de bonis
propriis costs order and referring the complaint to the
Public
Protector for possible investigation is the evidence that the
Department is in the process of hiring additional staff to
address
the capacity constraints alleged in Ms Seboga’s deposition.
This restraint is being exercised with some diffidence,
however,
because undertakings that matters would improve have been given
before, but no effective improvement has followed.
[20] I
have dealt with the issue in this judgment and in the earlier
judgment at some length so as to emphasise the seriousness
with which
this court views the repeated non-compliance by the Department’s
refugee section with the rules of court and certain
orders of court.
This is because the relevant misconduct is in breach of the
Department’s obligations in terms of s 165
of the Constitution
and prejudicial to the basic rights of vulnerable persons.
[21]
This judgment should be read as a warning to the public officials
involved that the stage has now been reached when the perpetuation
of
the maladministration that has characterised the Department’s
conduct of the litigation in the current matter and several
earlier
cases is more likely to result in officials concerned being
personally mulcted in costs. Furthermore, if the intended
expansion
of the relevant staff complement is not effective in addressing the
problems that have manifested for years, this is
likely to be seen by
the courts as an indication of the need for outside remedial
intervention using the mechanisms available in
terms of the
Constitution. In Nyathi v Member of the Executive Council for the
Department of Health Gauteng and Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC),
2008
(9) BCLR 865
, at para 78, it was remarked by Madala J that
‘[g]enerally, relevant state departments are in the best
position to assess
the magnitude of the problems faced by their
personnel and are similarly in the best position to address the
systemic failure of
state officials to perform their duties. These
State institutions need to look at these failings holistically and
consider the
best manner in which to deal with the problems at hand.’
Acknowledging the wisdom in that observation does not imply that
the
courts should in all circumstances eschew taking effective measures.
Extraordinary costs orders and inviting the intervention
of
constitutional organs such as the Public Protector and the Public
Service Commission are amongst the measures to which the courts
can
usefully resort when exceptional circumstances call for exceptional
responses. The courts cannot be seen to appear to be feeble
by
failing to respond meaningfully in the face of the Department’s
failure to respond constructively to repeated judicial
admonitions to
address the systemic dysfunctionality described in the earlier
judgment.
[22] In
the result the eighth respondent (the Minister of Home Affairs in his
representative capacity) will be ordered to pay the
applicant’s
costs of suit. The applicant’s counsel sought an order that
such costs should be paid on the scale as
between attorney and
client. In my view such orders in cases like this redound only
against the fiscus to the indiscriminate detriment
of the common
weal. Costs will therefore be awarded on the usual party and party
scale
[23]
The following order is made:
The
eighth respondent is ordered to pay the applicant’s costs of
suit.
A.G.
BINNS-WARD
Judge
of the High Court