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[2021] ZAGPJHC 73
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Nkosi v Minister of Home Affairs and Others (2020/30056) [2021] ZAGPJHC 73 (4 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
Case No.:
2020/30056
In the matter
between:
NKOSI, AZARIA
NSIMBINI
Applicant
and
THE MINISTER OF HOME
AFFAIRS
First Respondent
THE DIRECTOR-GENERAL
OF THE DEPARTMENT OF
HOME AFFAIRS
Second Respondent
THE MINISTER OF
SOCIAL DEVELOPMENT
Third Respondent
THE DIRECTOR-GENERAL
OF THE DEPARTMENT OF
SOCIAL DEVELOPMENT
Fourth Respondent
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT
OF SOCIAL DEVELOPMENT,
GAUTENG PROVINCE
Fifth Respondent
SOUTH AFRICAN SOCIAL
SECURITY AGENCY
Sixth Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down upon such circulation.
Gilbert AJ:
1.
The
applicant, an unemployed adult male born in 1952 seeks a variety of
relief directed principally at requiring the Director-General
of the
Department of Home Affairs (“the Director-General” and
“the Department”, used interchangeably) to
take a
decision whether to issue him with an identity document. The
applicant seeks this relief as it appears that an identity
document
is required to enable him to apply for social assistance in the form
of an older persons grant in terms of the
Social Assistance Act,
2004
.
[1]
The applicant also
seeks relief against
inter
alia
the sixth respondent effectively directing that he be given and paid
social assistance within thirty days.
2.
The
applicant’s complaint is that the Director-General has failed
to make a decision in terms of the
Identification Act, 68 of 1997
whether to issue him with a green bar-coded identity document.
Although the decision that the Director-General failed to make is
not
referenced and the relief is not formulated with precision in
relation to the applicable legislation in the notice of motion
and
founding affidavit,
“
[i]n
constitutional litigation, where infringements of rights entrenched
in the Bill of Rights are at issue, it is in any event
inappropriate
to adopt an overly technical attitude to the relief sought by an
applicant”.
[2]
3.
Section
15
as read with
section 3
of the
Identification Act requires
every
South African citizen and persons who are lawfully and permanently
resident in the Republic who has attained the age of 16
years in the
prescribed form and within the prescribed period to apply for an
identity card. Although not positively stated in
the
Identification
Act that
the Director-General must then consider the application and
come to a decision, this is necessarily inferred. While the
Identification Act provides
for the issue of ‘identity cards’,
section 25
of the
Identification Act provides
for a transitional
arrangement permitting the Director-General to continue to issue
green, bar-coded identity documents.
Although
section 25(1)
provides that the Director-General shall continue to
issue the green, bar-coded identity documents in accordance with the
previous
Identification Act, 72 of 1986, the proper statute under
which an applicant’s entitlement lies is the
Identification
Act, 1997
.
[3]
4.
As the parties agreed during the course of
argument before me as to principally the appropriate relief to be
granted, effectively
by consent subject to my formulation of an
appropriate order encapsulating the relief and to my making a
determination in relation
to costs, it is unnecessary to detail at
any great length the facts.
5.
It is common cause, alternatively not seriously
disputed, that:
5.1.
the applicant applied on 24 October 2016 to the
Director-General to be issued with an identity document;
5.2.
the applicant had applied simultaneously with his
sister for the issue of an identity document. His sister was issued
her identity
document some seven months later on 12 June 2017
but he was not;
5.3.
he subsequently made various enquiries of the
Department of Home Affairs, commencing on 14 June 2017, first
personally and
then through the assistance of attorneys, the most
recent being by his present attorneys of record through a formal
demand made
on his behalf on 19 May 2020;
5.4.
although not entirely clear, during the course of
these various queries the applicant ascertained that an investigation
was underway
in relation to his application, but no details were
furnished by the Department. Although
section 12
of the
Identification Act provides
for a verification of details by the
Director-General by way of requests and investigations, it does not
appear that these powers
were formally invoked;
5.5.
on 8 October 2020 the applicant issued the
present proceedings against
inter alia
the
Director-General seeking to review under
section 6(2)(g)
as read with
section 3(1)(a) of the Promotion of Administrative Justice Act, 2000
(“PAJA”) the failure of the Director-General
to take a
decision on his application for an identity document;
5.6.
the respondents delivered answering affidavits
during November 2020, which included an answering affidavit on behalf
of the Director-General
in which it was stated under oath that an
investigation is underway and that “
regrettably,
such investigation took longer than expected and such delay has
resulted to this application before this Honourable
Court
”.
During the course of argument, I was informed by the respondents’
counsel that the investigation was still underway;
5.7.
the deponent for the Director-General states in
the answering affidavit that there were discrepancies between the
applicant’s
application that he had submitted on 24 October
2016 and an application that the Director-General asserts the
applicant submitted
previously on 23 April 2003. Both the 2003
and 2016 applications are annexed to the answering affidavit, but
these are barely
legible. The copy of the 2016 application annexed by
the applicant to his affidavit is illegible. A comparison
between the
various applications cannot be made. The Director-General
does not disclose the circumstances giving rise to the Department
uncovering
and attributing to the applicant what the Department
contends is the earlier 2003 application;
5.8.
the applicant in his replying affidavit delivered
on 30 November 2020 does not respond substantively to these
discrepancies
raised by the Department of Home Affairs, but simply
states that he notes the averments.
6.
Notwithstanding the applicant having made
application as long ago as 24 October 2016, the Department of
Home Affairs’
position is that some four and a half years later
it is still investigating the matter. As far as can be gathered from
the papers
the first time that the Department gave any reason why an
investigation was underway was in its answering affidavit in November
2020 with reference to its sketchy description of the discrepancies.
7.
In my view, the applicant was justified in
approaching the court for assistance to effectively compel the
Director-General to make
a decision. It does not appear from the
respondents’ affidavits as to when the Director-General would
conclude the investigation
and would make a decision in relation to
the application. The Director-General does not proffer any
substantiated explanation for
the period already taken in relation to
its investigation other than to contend, in argument, that the
Director-General is inundated
with applications, many of which are
fraudulent, and therefore investigations take time. The averments
that appear in the Director-General’s
affidavit appear to be
largely generic, with little regard being given to the particular
facts of this case. It is now four and
a half years later and but for
the applicant having engaged attorneys to launch these proceedings,
the matter may have dragged
on indefinitely and without the applicant
even knowing that the Department was concerned about certain
discrepancies.
8.
The respondents contend that the applicant’s
difficulties are of his own making as he had previously made an
application in
2003 with particulars that differed from that made by
him in his 2016 application. But this presupposes that it was the
applicant
who made the application in 2003 and that the applicant was
in some or other respect at fault. This determination cannot be made
on the papers.
9.
The respondents also argue that the applicant had
various alternate remedies available to it such as approaching the
Department
to ascertain what the position was in relation to his
application. But it is clear from the papers that numerous attempts
were
made, including through his attorney, to engage with the
Department but to no avail. The
Identification Act does
not
provide for an internal remedy.
10.
The respondents further contends that the
applicant prematurely approached court and that the applicant was
aware that an investigation
was underway, and he should therefore
have awaited the outcome of the investigation. As is apparent from
what is set out above
these submissions have no merit in
circumstances where but for the applicant approaching court, the
investigation may have dragged
on indefinitely.
11.
On the other hand, the applicant has not taken
either the court or the Director-General into his confidence by
seeking to constructively
and substantially engage with the
discrepancies now raised, albeit belatedly, by the Department in its
answering affidavit. Had
he done so, a decision in relation to his
application for an identity document may have been significantly
advanced, if not even
made by the time the matter was to be heard on
the opposed roll. It is somewhat strange for the applicant having
sought an explanation
from the Department for over four years when
presented with the Director-General’s difficulties to then not
engage with those
difficulties.
12.
Whatever delays may have been experienced, the
Department has now under oath in its answering affidavit raised its
concerns in justification
as to why an investigation is underway. As
the applicant has not engaged with those concerns, it would premature
to consider mandatory
relief requiring either the Director-General to
issue the applicant with an identity document or the Department of
Social Development
to provide the applicant with social assistance.
The Department has raised its difficulties and the applicant needs to
engage with
those difficulties, so that the investigation can be
finalised and a decision made by the Director-General.
13.
It is in these circumstances that the parties
during the course of argument agreed that it would be appropriate
that after the applicant
was furnished a suitable period in which to
make submissions, the Director-General make decision in relation to
the applicant’s
application for an identity document. To this
end, the parties agreed that the applicant should be afforded thirty
days to make
submissions to the Director-General whereafter the
Director-General would be afforded sixty days to complete whatever
investigation
was underway and to make a decision.
14.
Given
the form of the relief that was agreed, and is to be granted,
condonation for any late launching of these review proceedings
does
not appear necessary. Nonetheless, having regard to the facts
described above and in the affidavits, and that the applicant
does
seek condonation, and that it is a matter of some nicety as when the
clock starts ticking in relation to an applicant reviewing
a
failure
to take a decision where no period is stipulated within which the
decision was to be taken,
[4]
I
grant such condonation in terms of
section 9(2)
of PAJA.
15.
The only outstanding issue related to costs.
16.
In my view, the applicant was justified in
approaching the court given the unreasonable delay of the
Director-General in dealing
with the applicant’s application.
The applicant, who is unemployed, was compelled to engage the
services of legal practitioners
to assistant him to assert what may
well be his constitutional rights to be issued with an identity
document and to obtain social
assistance if he so qualifies. The
applicant asserts that he is a South Africa citizen (he asserts that
he was in October 2016
issued with a South African identity number
and his foreign birth registered, which the respondents do not appear
to squarely challenge,
at least at this stage). I do not make any
positive finding in this regard other than to find that the applicant
was entitled to
far more expedition from the Director-General than he
received and that he was justified in bringing the application.
17.
On the other hand, once the applicant was aware
of the Director-General’s concerns as set out under oath in the
answering
affidavit, he has had an opportunity to substantively deal
with those concerns, either in approaching the Department or
substantively
in his replying affidavit. The Director-General in its
answering affidavit expressly records that “
it
is in the interests of justice that the applicant must explain the
discrepancies between the 2003 and 2016 identity document
applications, before a valid identity document can be issued
”.
Notwithstanding this invitation, the applicant did not do so.
18.
In my view, an appropriate costs award is that
the first and second respondents be ordered to pay the costs of the
application up
until and including the delivery of their answering
affidavit on 16 November 2020 and that there be no order of
costs thereafter.
19.
Although the applicant has not obtained any form
of substantive relief against the remaining respondents in relation
to the relief
directed at obtaining social assistance, given that the
applicant was seeking to vindicate what he contends are his
constitutional
rights and as all the respondents are represented by
the State Attorney, in my view no costs should be granted in relation
to those
respondents.
20.
The following order is made:
20.1.
Condonation is granted to the applicant in terms
of
section 9(2)
of the
Promotion of Administrative Justice Act, 2000
;
20.2.
The applicant is afforded thirty (30) court days
from the date of this order to make such representations as he
wishes, if any,
to the second respondent in relation to his
application to the second respondent for the issue of an identity
document, whether
in the form of an identity card as provided for in
the
Identification Act, 1997
or a green, bar coded identity
document as referred to in
section 25
of that Act.
20.3.
The second respondent is directed to make a
decision in relation to the application within sixty (60) court days
of the expiration
of the period in the preceding sub-paragraph. The
second respondent is entitled to exercise its powers of verification
as provided
for in
section 12
of the
Identification Act and/or
such other powers that it may have in relation to the
application provided that it does so within the stipulated period of
sixty days and provided that it nevertheless makes its decision
within the period of sixty days.
20.4.
The second respondent is to inform the applicant
of its decision within five (5) days of making the decision, by way
of notification
to the applicant’s attorneys Dlamini Legal Inc
and Matlale Matladi Attorneys.
20.5.
There is no order of costs, save that the second
respondent is to pay the applicant’s costs up to and including
the first
and second respondents’ answering affidavit of
November 2020.
Gilbert AJ
Date of
hearing:
3 June 2021
Date of judgment:
4 June 2021
Counsel for the
Applicant:
Mr B M Khumalo
Instructed
by:
Dlamini Legal Inc (Tsakane)
Counsel for the
Respondents:
Ms B S Maphosa
Instructed
by:
The State Attorney, Johannesburg
[1]
Regulation
11(1)(a)
of the Regulations relating to the Application for and
Payment of Social Assistance and the Requirements or Conditions in
respect
of the Eligibility for Social Assistance, published under GN
R898 in GG 31356 of 22 August 2008.
[2]
Fourie
and another v Minister of Home Affairs and others
2005
(3) SA 429
(SCA), para 100.
[3]
Sibiya
v Director-General: Home Affairs and Others, and 55 Related Cases
2009
(5) SA 145
(KZP), para 12.
[4]
See
Sibiya
above, para 16 and 17.