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[2011] ZAECPEHC 21
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Hossain v Minister of Home Affairs and Another (577/2011) [2011] ZAECPEHC 21 (17 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 577/2011
Date
Heard: 10 May 2011
Date
Delivered: 17 May 2011
In
the matter between:
MOHAMMED
KAMAL HOSSAIN
….............................................................
Applicant
and
MINISTER
OF HOME AFFAIRS
…...................................................
First
Respondent
DIRECTOR
GENERAL OF HOME AFFAIRS
….........................
Second Respondent
JUDGMENT
EKSTEEN
J:
[1] There has recently been a steady
flow of applications in this court in which refugees arriving in
South Africa have sought relief
arising from their frustration with
the Department of Home Affairs (the Department). This application is
one of those. The present
application concerns the second
respondent’s alleged failure to take a decision and to process
an application by the applicant
for temporary residence.
[2] Refugees are, per definition,
foreigners arriving in the country in a desperate endeavour to escape
the persecution to which
they have been subjected in their home
countries. It is not uncommon for them to experience difficulties
with communication arising
from language barriers which exist. It is
for this reason that they are often dependent upon active assistance
and cooperation
of officials in the Department in seeking to
regularise their presence in this country. Indeed, section 21 of the
Refugees Act,
130 of 1998 (Refugees Act) enjoins the refugee
reception officer to see to it that an application form in respect of
an application
for asylum is properly completed and he is, by this
section, obliged to assist an applicant in this regard.
[3] Generally, the courts will be
sympathetic to the plight to such refugees and would hasten to their
assistance where their rights
under our Constitution and other
Legislation are infringed, in the same manner as the courts protect
the rights of citizens, provided
always that a proper case is made.
[4] The papers in this application,
regrettably, are not a model of clarity and fall far short of the
standards which this court
does, and is entitled to, expect from
practitioners who appear before it. The applicant, as more fully set
out below, was at all
times assisted by an attorney in his affairs
relevant to this application.
[5]
The relief
The Notice of Motion filed of record
seeks an order:
“
That the
Respondents are directed to process the Applicant’s application
for renewal of Accompany Spouse & Work Permit
lodged on 28
October 2010 and captured on 3 November 2010 at the Port Elizabeth
Regional Office of the Department of Home Affairs,
and to inform the
Applicant’s Attorneys of their decision within thirty (30) days
from the date of the Order.”
[6] The Immigration Act, 13 of 2002
(the Act) provides in sections 11-23 for various kinds of temporary
residence permits to be
issued by the second respondent. In the
terminology of the Act none of these are referred to as an “accompany
spouse and
work permit”. In argument before me it appears that
this appellation is intended to refer to a permit issued in terms of
the provisions of section 11(6) of the Act. Section 11(6) deals with
“visitor’s permits” which may under certain
conditions be issued to a “foreigner who is the spouse of a
citizen or permanent resident and who does not qualify for any
of the
permits contemplated in section 13-22”. On granting such a
permit the second respondent may, in terms of section 11(6)(b)
authorise the foreigner to work, hence, I assume, the adoption by the
applicant of the colloquial appellation “accompany
spouse and
work permit” utilised in the papers. I say that I assume this
to be the position as no explanation is given in
the affidavit for
this terminology. I shall consider reference to an “accompany
spouse – work permit“ to refer
to a permit issued in
terms of section 11(6) of the Act.
[7] In the introductory portion of the
founding affidavit, however, the applicant records as follows:
“
5. This
application is instituted in order to compel the Department to
process my application for transfer of my accompany spouse
–
work permit from my old to new passport.
6. …
7. It is respectfully submitted that
this Honourable Court has jurisdiction to deal with this matter
particularly, since:
7.1 My application for transfer of my
accompany spouse – work permit was lodged at the Port Elizabeth
Regional Office of the
Department.
7.2 Failure to finalise my application
for transfer of accompany spouse – work permit has impacted on
me within the jurisdictional
area of this Honourable Court.”
[8] This appears to suggest that a
valid permit is existence which requires transfer from one passport
to another. I have been unable
to find any provision in either the
Act or the
Refugees Act which
imposes such an obligation on the
second respondent, nor was I referred to any provision which imposes
such a duty. In any event,
this does not accord with the relief
sought in the Notice of Motion where reference is made to an
application for “renewal
of Accompany Spouse & Work
Permit”.
[9] Mr
Moorhouse
, who
appeared on behalf of the applicant advised me at the hearing of the
application that he did not intend to seek the relief
contained in
the Notice of Motion. Instead he handed to me a draft order setting
out the relief which was ultimately sought. The
order which was
sought is:
“
1. That the
Second Respondent is directed to decide upon the Applicant’s
application for a renewal of his temporary residence
permit in terms
of
section 11(6)
of Act 13 of 2002;
2. That the Second Respondent must
furnish the Applicant’s attorneys of record with the
aforementioned decision within thirty
days from the date of the
granting of this Order.”
[10] The matter of “transfer”
of an existing permit therefore appears to be no longer relevant.
Save to the extent of
dealing with allegations in the evidence which
have bearing upon the outcome of the matter I shall consider this
aspect to be irrelevant.
It is an application for “renewal”
which is in issue.
[11]
Evidence
The applicant, a Bangladeshi national,
states that he came to South Africa to seek asylum. During his
initial stay in South Africa
he formed a relationship with and
married a South African citizen. As a result thereof and on the
advice of his legal representatives
he lodged an application for what
he refers to as “accompany spouse”. He was subsequently
issued with an “accompany
spouse – work permit”
under file number PE300/09 on 18 August 2009. This document he
attaches. The document evidences
that he was issued with a permit in
terms of section 11(6) of the Act to “co-habit with his South
African spouse and to work
for Corner Cash Stores”.
[12]
Ex facie
the permit it is
valid for one year lapsing on 22 August 2010. The applicant
recognises that the permit was valid only until 22
August 2010. He
declares, however, that his legal representatives had been informed
at the time of the issue of the permit by officials
of the Department
that his application had been approved for a period of two years. The
reason for the permit having been issued
only for one year was, so he
alleges, that his passport was due to lapse on 22 August 2010. In
these circumstances the Department
advised that the permit in respect
of the second year would be issued once his new passport had been
issued. This, he says, has
now occurred.
[13] The applicant records that he has
been advised of the relevant provisions of section 11(6) and he
submits that he has complied
with the requirements. He then proceeds
to record as follows:
“
15. The
Act’s Regulations prescribes the procedure which an Applicant
must follow in order for an application for an accompany
spouse –
work permit transfer to be considered by the Second Respondent.
Having been assisted to lodge a complete application
in the
prescribed manner on 3 November 2010 an official acknowledgement of
receipt was issued.”
[14] Section 11(6) of the Act makes no
reference to the transfer of permits. I have already recorded that
the applicant does not
seek any relief relating to the “transfer
of a permit”. I have also found no provision in the Act
relating to the “transfer”
of permits. The regulations
referred to are neither annexed to the application nor identified. On
the papers filed it is accordingly
not entirely clear what the
perception of the applicant was of the nature of the application
which he had made to the Department.
[15] Be that as it may, the applicant
acknowledges that he has been duly assisted, presumably by the
officials of the Department,
to lodge a complete application in the
prescribed manner on 3 November 2010. In support thereof he has
annexed an acknowledgement
of the receipt issued by the Department.
The receipt, however, does not tie in with the allegations in the
affidavit. The document
annexed is indeed an acknowledgement of
receipt of an application issued by the Department. It records the
applicant’s name,
date of birth and passport number and then
set out two reference numbers, presumably to facilitate the
identification of the application
for record purposes. It then
records that the application received is for a “relative’s
permit (spouse)”. A relative’s
permit is one provided for
in section 18 of the Act. The discrepancy is not explained. Different
requisites apply to the application
in terms of section 18 to those
which apply to section 11. In addition, section 18(2) provides that
the holder of such a permit
may not conduct work. The confusion in
respect of the nature of the application is compounded by the
inscription on the acknowledgement
of receipt of the following
remarks:
“
REMARKS:
SPOUSE
PERMIT TRANSFER”
[16] The document provides no
clarification of these comments. Whatever the position may be it is
apparent from the aforegoing,
and indeed accepted during argument on
behalf of the applicant, that no valid permit was in existence on 3
November 2010.
[17] Having lodged this application on
3 November 2010 the applicant alleges that his legal representatives
were advised that it
would take thirty days to finalise the
application. This is confirmed by the applicant’s attorney of
record. Whilst the papers
do not say so I shall assume, in the
applicant’s favour, for purposes hereof that this information
is alleged to have been
conveyed at the offices of the Department.
The papers do not suggest who at the Department conveyed this nor the
rank or office
of this source. It is not suggested that applications
of this nature ordinarily take thirty days nor is it alleged that
thirty
days represent a reasonable time within which to take a
decision. No basis is laid for such a conclusion.
[18] The applicant records that since
December 2010 the applicant’s legal representatives have been
visiting the offices of
the Department on a regular basis to enquire
about the issuing of his accompany spouse – work permit. On all
these occasions,
he says, the Department has failed “to provide
adequate reasons as to the delay” in the issuing of his permit.
This
allegation is confirmed in a confirmatory affidavit by the
applicant’s attorney of record. I find it somewhat curious that
despite legal representatives being sent to attend upon the
Department no particulars are provided in respect of any of these
visits. The affidavit does not reveal who the legal representative
was who attended upon the offices of the Department on each or
any
occasion nor does it reveal the dates or frequency of such visits. No
information is provided as to who was approached at the
offices of
the Department and no detail is provided as to the response received.
The inescapable conclusion to be drawn from the
statement contained
in the affidavit is that indeed the Department did provide reasons
for the delay and that either the applicant
or his legal
representatives regard those reasons as being inadequate. The court
has, however, not been taken into the applicant’s
confidence so
as to determine the adequacy or otherwise of the reasons which were
in fact provided. I shall revert to this aspect
below.
[19] On 24 December 2010 the
applicant’s attorney of record sent a letter of demand by
registered post to the Department.
The letter, I consider, as I shall
show below, is of significance to the question of whether a
reasonable delay has occurred. It
was sent, as I have recorded on 24
December 2010. It is addressed to The Director: Legal Services of the
Department in Pretoria.
At the top of the first page a reference
number is inserted as being the reference of the applicant’s
attorney. Below that
provision is made for “Your Ref:”
being the reference number allocated by the Department. No reference
number has been
reflected on the letter notwithstanding that the
acknowledgement of receipt to which reference is made in the body of
the letter,
contains specific references. At the commencement of the
letter it carries the heading “APPLICATON OF TRANSFER OF
ACCOMPANY
SPOUSE – WORK PERMIT”. The applicant’s
name is then reflected and it then records: “DATE OF
APPLICATION
03 NOVEMBER 2010”.
[20] The letter commences with a brief
summary of the applicant’s arrival in South Africa and then
proceeds as follows:
“
He got
married to his South African citizen wife and then approached our
office to assist him to lodge an application for Accompany
Spouse –
Work Permit in terms of
Section 11(6)
of the
Immigration Act 13 of
2002
. We confirm that our client was issued with the aforesaid permit
at the Port Elizabeth Regional Office on 18 August 2009, under
file
number PE300/2009.
The accompany spouse – work
permit was approved for two (2) years but a period of 1 year could
only be issued since his passport
was also valid for one year. We
confirm that our office lodged a complete application for permit
transfer on 3 November 2010 and
an official acknowledgement of
receipt was issued.
We were advised that the Department
will process our client’s application with thirty (30) days.
Despite having repeatedly
made enquiries at the Regional Office of
the Department, as to the outcome of the application, the Department
has failed to and/or
neglected to furnish our client with a decision
as to whether his application for accompany spouse – work
permit transfer
has been approved or rejected.
In the circumstances, we are
instructed to demand, as we hereby do, that:
(a) The Department or its duly
authorized official forthwith consider and decide upon our client’s
application for transfer
of accompany spouse – work permit.
(b) And inform our office of its
decision within twenty (20) days from date hereof.
Failure to do so will leave us with no
option but to institute High Court proceedings compelling the
Department to consider and
decide upon our client’s application
for transfer of accompany spouse – work permit.”
[21] I shall revert to the content of
the letter below. The applicant records, however, that no response
was received to this letter
and accordingly this application was
issued on 25 February 2011.
[22]
Legal Basis of Application
The applicant refers to section 8(3)
of the Act which provides as follows:
“
Any decision
in terms of this Act, …, that materially and adversely affects
the rights of any person, shall be communicated
to that person in the
prescribed manner and shall be accompanied by the reasons for that
decision.”
[23] Administrative action as
envisaged in the Promotion of Administrative Justice Act, 3 of 2002
(PAJA) includes both the taking
of a decision and the failure to take
a decision of the nature defined in section 1 of PAJA. Section
6(2)(g) of PAJA provides for
the judicial review of administrative
action which consists of such a failure. That much is not
contentious. In the present matter
the law does not lay down a time
within which the second respondent is required to take a decision.
This brings the provisions
of section 6(3) of PAJA into play. Section
6(3) provides as follows:
“
(3) If any
person relies on the ground of review referred to in subsection
(2)(g) , he or she may in respect of a failure to take
a decision,
where-
(a)
(i) an administrator has a duty to take a
decision;
(ii)
there is no law that prescribes a period within which the
administrator is required to take that decision; and
(iii)
the administrator has failed to take that
decision,
institute
proceedings in a court or tribunal for judicial review of the failure
to take the decision on the ground that there has
been unreasonable
delay in taking the decision
.”
[24] The applicant, as I have shown,
contends that he had applied in 2009 for a temporary residence
permit. The evidence shows that
pursuant that application a permit
was issued in terms of section 11(6) and that such permit, although
only issued for the period
of one year was approved for a period of
two years and that decision was duly conveyed to the applicant’s
representatives.
The applicant has no complaint in respect of that
decision. Whilst I am alive to the fact that a “decision”
is defined
in PAJA so as to include a decision relating to the
refusing to give a “certificate” (subparagraph (b) of the
definition
of “decision”) and the “retaining or
refusal to deliver up, an article …” (subparagraph (f)
of the
definition of “decision”), the applicant has not
requested the issue or the delivery of a permit in respect of the
remainder of the period pursuant to the earlier decision. No reliance
is placed upon the decision taken in 2009. The applicant now
seeks a
direction that the second respondent decide upon his application “for
a renewal” of his temporary residence
permit. It is abundantly
clear on the papers that it is the application of 3 November 2010 to
which reference has been made above
which is in issue. I shall
accordingly limit what follows to the application of the provisions
of PAJA to the evidence set out
above in respect of the application
on 3 November 2010.
[25] The application of section
6(2)(g) has recently enjoyed the attention of Wallis J in two
separate matters to which I shall
refer below. Most recently, in
Thusi v Minister of Home Affairs
2011 (2) SA 561
at
577-579 Wallis J stated as follows:
“
[41] PAJA is
the statutory embodiment of the constitutional right to just
administrative action, that is, administrative action
that is lawful,
reasonable and procedurally fair. Administrative law as developed by
our courts prior to the constitutional era
is now subsumed under the
constitutional right to just administrative action and does not exist
as a separate body of law alongside
the constitutional dispensation.
However that does not mean that the administrative law developed by
our courts prior to the Constitution
and the enactment of PAJA is to
be disregarded. It may provide a helpful source to inform and
illuminate the particular provisions
of PAJA.
[42] Without saying that the two
overlap entirely, s 6(2)(g) deals with a situation that under the
common law would have attracted
the remedy known as a mandamus. This
was an order requiring a public authority to comply with a statutory
duty imposed on it, or
to perform some act to remedy a state of
affairs brought about as a result of its own unlawful administrative
action. As with the
common-law mandamus, s 6(2)(g) of PAJA deals with
the failure by an administrator to take a decision that the
administrator is
under a legal obligation to take.
[43] Where s 6(2)(g) is invoked and a
mandatory order is claimed by way of consequential relief, the
applicant must demonstrate
that the administrator concerned is under
a duty to perform the act in question and has failed to so. This was
also the case with
a common-law mandamus. In
Moll v Civil
Commissioner of Paarl
(1897) 14 SC 463
at 468 De Villiers CJ
said about this form of relief:
‘
The wide
power possessed by the Court under our law of interdicting illegal
acts implies the power, as pointed out in
New
Gordon Co. v Du Toitspan Mining Board
(9
Juta, 154), of compelling the performance of a specific duty, at all
events on the part of a public officer, by mandatory interdict
or
other form of “mandament”. It also implies the power of
correcting an illegality committed by such public officer,
so long as
it is capable of correction, if the rights of an individual are
infringed by such illegality. But it is obvious that
relief will not
be given where such rights are of a doubtful nature, or where the
public officer has acted in the exercise of a
discretion left to him,
but only where the existence and continued infringement of an
absolute legal right have been clearly established.’
When dealing with the appropriate
consequential relief in such a case Greenberg J (as he then was)
said:
‘…
prima
facie
,
as the proceedings are based on a complaint that the statutory body
has withheld from the aggrieved party the right given to him
by
statute, it would seem that the more appropriate remedy is to order
that he be given that to which he was entitled and which
has been
withheld; in the present case the applicant’s cause of action
is not that they were entitled to a certificate but
to a proper
hearing and exercise of discretion – and
prima
facie
the court should grant them what has been withheld.’
I think these statements of principles
are equally applicable to a review under s 6(2)(g) of PAJA.
[44] This has two consequences for the
cases under consideration. The first and obvious one is that each
applicant was obliged to
establish on a balance of probabilities that
he or she made either an LRB application or an application for the
issue of an identity
document, or both such applications, and that
there has been an unreasonable delay in responding to those
applications. That must
at least have been the situation when the
application was launched. Otherwise they will have commenced
prematurely and without
establishing any ground for review at all …”
I agree entirely with the conclusions
arrived at by Wallis J as set out above.
[26] In the present case the applicant
made an application to the second respondent for the renewal of his
rights of temporary residence.
It is by no means clear whether the
application was made in terms of section 11(6) or section 18. The
applicant makes the averment
that he was assisted to make the
application in terms of section 11(6). The acknowledgement of receipt
issued as proof thereof
reflects that the application made was in
terms of section 18 of the Act. It is not necessary for present
purposes for me to make
a finding in this regard as it does not
appear to me to be material to the outcome of the application. In
either event the applicant
is entitled to a decision. That is what he
contends has been withheld from him.
[27] The second requirement which the
applicant must establish is that there had been an unreasonable delay
in responding to his
application prior to the launch of this
application. I consider that this matter is more problematic than the
first. The second
decision by Wallis J to which I have referred above
is
Sibiya v Director-General: Home Affairs and Others and 55
Related Cases
2009 (5) SA 145
(KZP). In this matter Wallis J
addressed at length the issue of unreasonable delay. There are many
similarities between the issues
in the present application and the
issues under consideration in
Sibiya
supra
. I find
myself in agreement with the approach and reasoning of Wallis J in
that matter. I consider that it is of assistance to
have regard to
some of the reasoning in that matter.
[28] In
Sibiya
supra
at
p. 161-162 the learned Judge held as follows:
“
[24]
As the question of whether the department has delayed unreasonably in
attending to an application is a question of fact in
my view if an
applicant wishes to satisfy a court that there has been unreasonable
delay in dealing with their application they
must furnish sufficient
particulars of their personal circumstances and the nature of their
application, so as to indicate on what
basis the reasonable period
has been determined. Enough information must be furnished to convey
to the court the reasons why they
contend that there has been undue
delay in dealing with their application and why they allege that the
department is in default.
… While one must be cautious of
applying statements made in the wholly different context of what
constitutes a reasonable
time for performing a contractual obligation
in the different environment of administrative action it has there
been held that
what is a reasonable time will depend amongst other
things on the particular circumstances surrounding the performance of
the contractual
obligation in question, and the difficulties,
obstacles and delays in performing that were actually foreseen or
would be foreseen
by a reasonable person. It has also been said that
one is entitled to expect reasonably prompt and appropriate action
and due diligence
on the part of the party obliged to perform.
Suitably adapted, these seem to me to be appropriate matters to take
into account
in determining whether a reasonable time has passed
after the lodging of an application so that it can properly be
contended that
the department is in default.
[25] If, after taking into account
all the potential vagaries of the situation, whether those referred
to above or others not identified
by me, one could be satisfied that
a period of three months would be an adequate period in every case
within which the department
should either provide an identity
document or refuse to do so, then the standard allegation in this
regard could be accepted. However,
it would require considerably more
information than is at present available on these papers to satisfy
me on that score. …”
[29] I turn to consider the averments
relating to delay in the present matter. The applicant herein says
that his legal advisors
were advised that the application would be
processed in thirty days. That may be so, however, a prediction made
at the time of
the receipt of the application cannot of itself be a
measure as to what constitutes a reasonable time within which the
second respondent
was obliged to process the application. It
certainly does not suffice to satisfy me that thirty days would
always be reasonable
to finalise any application for the renewal of
temporary residence permit. The prediction of an official in the
Department is of
course not without value and it is one of the
considerations to which I would usually have regard in considering
whether or not
a reasonable period had elapsed. It must however be
considered in the context of all the other averments relating to
delay contained
in the founding affidavit. In this instance the
allegation is of little assistance. I have referred above to the
inadequacy of
the averments relating to this prediction. If an
undertaking was given by a responsible official in the Department to
process the
application in thirty days then I find it remarkable that
greater particularity is not set out in the papers which would enable
the court to assess the weight to be attached to it. Importantly the
applicant does not allege that thirty days would be a reasonable
time
for the Department to respond.
[30] The second consideration raised
in the founding papers in respect of an unreasonable delay is the
repeated visits which the
applicant’s legal representatives
allegedly made to the office of the Department. I have dealt with the
shortcomings in those
averments above. I find it curious that the
applicant does not disclose the reasons which officials of the
Department advanced
for the delay. The unilateral conclusion of the
applicant that the reasons advanced were not “adequate”
to justify
the delay are of little persuasion. The question arises
irresistibly in the mind whether the reasons given may have been
considered
to detract from the merits of the applicant’s case.
[31] Mr
Moorhouse
argues
that it is for the respondents to explain the delay. I have already
expressed my agreement with the conclusions reached in
Thusi’s
case,
supra
that it is incumbent upon the applicant to
establish that an unreasonable delay had occurred prior to the
launching of the application.
It is one of the jurisdictional facts
required in section 6(3) of PAJA to make out a case for review under
section 6(2)(g).
[32] It remains to consider the letter
of demand. I have quoted extensively from the letter above. It called
upon the Department
or its duly authorised official to consider and
decide upon the applicant’s application. The failure by the
Department, in
the context of the present matter, to respond at all
to the letter is indeed cause for concern. I have referred above to
the plight
of foreigners forced to seek refugee in our country from
the persecution to which they have been subjected elsewhere. They are
dependent upon the assistance of the second respondent and they are
entitled to such assistance. They are entitled, just as any
other
citizen is, to expect at the very least an acknowledgement of receipt
of a communication of this nature. (Compare in this
regard
Sibiya’s
case
supra
p. 163-164 para [27].) This failure on the part of
the Department, although it falls to be deprecated cannot, coupled
only with
the application having been made, be decisive of the
matter. The judgment in
Sibiya
supra
addressed the
considerations which affect the weight to be attached to letters of
demand such as these. The learned Judge at p.
163B-D stated:
“
[26]
However, the usefulness of such a notice depends upon it being
couched in terms that will enable the department to identify
the
applicant in question and their application, and give them a
meaningful response. If it merely compounds existing confusion
it is
of little help. That is the case with the letters of demand attached
to the affidavits in these applications. Like the affidavits
themselves, they are in standard terms and they furnish the minimum
of information. At most they contain the name of the applicant,
their
date of birth, identity number if they have one, or the reference
number of their application, the date of the application
and the
office at which it was made, and nothing more. …”
[33] Having considered the content of
the letters in issue in
Sibiya
supra
the learned Judge
held that they were not sufficient to establish that a reasonable
time had lapsed. He went on to state as follows
at p. 164F:
“…
if
the letters had been properly informative and directed the
Department’s attention to the correct application and the
nature
of that application my inclination might have been to say that
they did. However, as I have already noted, the letters do not. They
all assert that the application is simply one for the issue of an
identity document when manifestly that is not correct in many
instances. They make no attempt to distinguish between an initial
application and one joined with an application for the late
registration of the applicant’s birth. They do not distinguish
between those instances and an application for a replacement
identity
document, whether or without a change of information concerning the
applicant. …”
[34] Subjecting the letter in issue in
the present matter to similar scrutiny shows, in my view, simply a
compoundment of the already
existing confusion which arises from the
terminology utilised by the applicant, the perception of his
application being in terms
of section 11(6) and the acknowledgement
of receipt of an application in terms of section 18. The letter is
addressed to “The
Director: Legal Services” of the
Department in Pretoria. All previous dealings in respect of the
applicant’s applications
have been with the Port Elizabeth
office of the Department.
[35] The letter recognises the
acknowledgement of the receipt of the application and the letter
specifically provides for the insertion
of the Department’s
reference number. Yet, remarkably, the reference number is not
inserted. I think that it is extraordinary
that the Department’s
reference number in respect of the application which features so
prominently in the acknowledgement
of receipt is not referred to
anywhere in the letter. Clearly the allocation of a reference number
is to enable the Department
to identify the application in issue when
future enquiries are made. That is the purpose of providing it. There
is every reason
to believe that this failure might make it extremely
difficult for the Department to identify the correct application. The
applicant’s
passport number which enjoys equal prominence in
the acknowledgement of receipt is similarly not referred to.
[36] I have recorded above that it is
apparent from the acknowledgement of receipt that the application
received by the Department
has been acknowledged as being an
application for a “relative’s permit (spouse)” same
being an application in
terms of section 18. I find it curious that
this feature which may have assisted the Department in identifying
the correct application
and the nature of such application is not
included in the letter. The letter persists in the terminology
identifying the application
as one for “transfer of
accompany
spouse – work permit
”. This terminology could
hardly assist the Department in identifying an application for the
“renewal of a visitor’s
permit” in terms of section
11(6) of the Act or an application for a “relative’s
permit” in terms of section
18 of the Act. The reference to the
“file number” of the 2009 application is equally little
assistance.
[37] In these circumstances I do not
consider that the letter coupled with a prediction by an unidentified
individual in the Department
that the application be processed in
thirty days can establish that an unreasonable delay had occurred
prior to the issue of this
application. This is particularly so where
it would appear from the founding affidavit that reasons for the
delay have been provided
which the applicant, or his legal
representatives, regard to be inadequate but which are not shared
with the court. It is significant
too that nowhere in the papers does
the applicant say what he considers to be a reasonable period within
which to respond to his
application nor is any attempt made to
motivate why the delay which has occurred should be considered to be
unreasonable.
[38] For these reasons I am unable to
find that the applicant has established that an unreasonable delay
had occurred prior to the
issue of the application. The application
is accordingly fatally defective.
[39] In the result, the application is
dismissed. No order is made in respect of costs.
___________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Applicant:
Adv Moorhouse,
instructed by Maci Attorneys, Port Elizabeth
For Respondent:
Adv Msizi,
instructed by the State Attorney, Port Elizabeth