About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 9
|
|
Mantshongo v Minister of Home Affairs and Another (943/11) [2012] ZAECPEHC 9 (14 February 2012)
7
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE HIGH
COURT- PORT ELIZABETH)
CASE NO: 943/11
Date
heard: 26/04/2011
Date
delivered: 14/02/2012
In
the matter between
NONCEBA
GRACE MANTSHONGO
…................................................................
Applicant
and
THE MINISTER OF HOME
AFFAIRS
….....................................................
First
Respondent
THE
DIRECTOR-GENERAL: DEPARTMENT
OF
HOME AFFAIRS
….........................................................................
Second
Respondent
J U D G M E N T
DAMBUZA,
J
:
[1] In this application,
the applicant seeks an order that the second respondent, being the
Director General of the Department of
Home Affairs, be compelled to
consider her application for a duplicate identity document and to
make a decision thereon, which
decision shall be communicated to the
applicant’s attorneys within 10 days of the order. She also
seeks an order that the
applicant be directed to, within 5 days of
the order, furnish her with particulars of the functionary within the
Department of
Home Affairs (the Department) who is handling her
application for a duplicate identity document. The application is
opposed.
[2] The background
leading to these proceedings is largely common cause. On 20 May 2004
the applicant lodged an application with
the Uitenhage office of the
Department for a duplicate Identity Document. She had lost her
original identity document. Subsequent
to the application being made
the second respondent directed a letter to Uitenhage Regional Office
of the Department. In that letter,
dated 20 May 2004 the second
responded instructed that the Uitenhage office obtain from the
applicant a completed B1-9/10 application
form together with two
recent Identity Document photographs, a birth certificate indicating
a birth entry number together with
full names of the applicants’
parents, an affidavit with the applicants’ left thumb print,
the applicant’s previous
addresses over the preceding five
years and a copy of her marriage certificate. It is common cause on
the papers that the applicant
did furnish the information and
documents required on 13 June 2006
[3] Thereafter, on a
number of occasions, the applicant visited Uitenhage office of the
Department to enquire as to the progress
of her application. Each
time she was told by employees of the Department that her Identity
Document had not yet been issued, or,
in her words “was not
ready for collection.” Sometimes she was told that there was no
information regarding progress
of her application and that she should
wait for a further period of time.
[4] On 30 March 2007 the
applicant wrote to the Pretoria offices of the Department, enquiring
about her application. She received
a response (letter) dated 18
April 2007 from the Department in which she was advised to contact
T
Nkoane
by telephone so that her matter could be looked into and
that she could be provided with a progress report. According to the
applicant
she did phone
Nkoane
and gave her details,
afterwhich she waited for further advice from the Department. She
never received any further communication
from the Department and
ultimately resorted to instituting these proceedings.
[5] This application was
preceded by a letter dated 27 August 2010 from the applicant’s
attorneys to the Director Legal Services
in the Department of Home
Affairs. In that letter the applicant‘s attorneys, enquired
about the applicant’s application
and demanded that the
applicant be furnished with a response to her application within 30
days of receipt, by the Department, of
the letter. The second
respondent responded in a letter dated 10 January 2011 requesting the
applicant not to proceed with the
intended court proceedings as her
application was receiving attention. The second respondent further
advised that the reason for
the delay in finalizing the application
was that the applicant’s identity number had been “
erroneously
linked to fingerprints of another person.”
[6] In opposing the
application the respondents take issue with the delay by the
applicant in bringing this matter to court. They
contend that on that
ground alone the application should be dismissed, more so that as the
applicant has not furnished any explanation
for the delay and has not
applied for condonation of her failure to bring this matter before
court within 180 days
“
from
the date on which she experienced the injustice relied upon”
in the application.
1
Further to that, the
respondents contend that at the time of the institution of the
application the applicant was well aware that
her application was
under consideration. As to the delay in processing the application
for duplicate Identity Document
Courtenay
Patrick George de Havilland Champion,
a
chief administrative officer of the first respondent states in the
answering affidavit that during 2004 to 2009 the respondents
became
aware that thousands of fraudulent Identity Cards had been issued to
foreign nationals. This was done under the guise of
late registration
of births or applications for duplicate identity documents. To stamp
out this fraud the Department “subjected
to full scale
investigation” all (new) Identity Document applications. These
investigations, conducted in terms of section
12 (b) of the
Identification Act resulted in delays by the Department in finalizing
new Identity Document applications.
[7] The respondents’
case is that in a letter dated 12 October 2009 the applicant was
advised that her Identity Number had
been erroneously linked to
fingerprints of another person and she was invited to furnish some
information and documents to the
functionaries at the offices of the
Department to resolve the problem. It is the applicant’s
failure to respond to this letter
that is the cause for the delay, so
contend the respondents.
[8] Apart from denying
that she ever received the letter dated 12 October 2009 the applicant
states, and I agree, that the information
that may have been sought
by the Department as per that letter (of 12 October 2009) had already
been furnished by the applicant
on 13 June 2006. It is common cause
in the papers that the applicant had been advised of this problem as
far back as August 2004
and that she had submitted to the Department,
documents that were required to resolve the problem. There is no
explanation from
the respondents as to why they, in October 2009,
sought from the applicant, information which was given to them as far
back as
2006. The contention by the respondents that the delay is the
applicant’s own fault cannot stand and does not merit further
attention. In any event, it would appear that all the parties are in
agreement that there has been an undue delay in processing
the
applicant’s application for a duplicate Identity Document. In
their letter of response to the applicant’s Attorneys
(dated 10
January 2011), the respondent’s attorneys admitted that
“
despite the above reason (for the delay), we accept that
the delay is unacceptable”.
There is also no explanation as
to why, if the cause of the delay is the applicant’s failure to
provide the Department with
information, that reason was not
communicated in the letter of 10 January 2011 or to the applicant
herself during her visits to
the offices of the Department. There can
be no doubt that the applicant was entitled to have her application
for an Identity Document
processed by the Department and to be
advised of the outcome thereof within a reasonable period. When the
applicant instituted
these proceedings it was almost seven years
since she had applied for the document and her application had not
been finalized.
That period is, in my view, extremely unreasonable.
[9] As to whether the
applicant should be non-suited for the delay in instituting court
proceedings, section 7 of the Promotion
of Administrative Justice Act
3 of 2000 (PAJA) on which the respondents’ contention is based,
provides that:
“
(1) Any
proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay and not later than
180 days
after the date –
Subject to subsection
(2) (c), on which any proceedings instituted in terms of internal
remedies as contemplated in subsection
(2) (a) have been concluded;
or
Where such remedies
exist, on which the person concerned was informed of the
administrative action, became aware of he action
and the reasons.
(a) Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal
remedy provided for
in any other law has first been exhausted.
(b) Subject to
paragraph (c), a court tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph (a)
has been exhausted,
direct the person concerned must first exhaust such remedy before
instituting proceedings in a court or tribunal
for judicial review in
terms of this Act.
(c) A court or a
tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from
the obligation to exhaust
any internal remedy if the court or tribunal deems it in the interest
of justice.
[10] It was not the
respondents’ case that there are internal remedies that the
applicant was obliged to exhaust prior to
approaching court. And
although I agree that the applicant could have instituted proceedings
much sooner than she did, my view
is that non-suiting her for that
“delay” would only aggravate the injustice that she has
had to suffer as a result
of the failure of public officials employed
by the Department. In my view she was acting within her rights in
lodging an application
with the Department and doing her best to
pursue the application, to the extent that she wrote to the National
Office of the Department
to seek assistance.
[11] I therefore grant
the following order:
1 The second respondent
is ordered to consider, finalize and advise the applicant’s
attorneys of the result of the applicant’s
application for a
duplicate identity document within 30 days of this order;
2 The second respondent
shall, within five days of this order, furnish the applicant’s
attorneys with the names and contact
details of the functionary
within the Department of Home Affairs who is dealing with the
applicant’s application for a duplicate
identity document; and
3 The first respondent
shall pay the applicant’s costs of this application;
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
For the applicant :
Moorhouse instructed by Mc William & Elliot INC. Port Elizabeth
For the respondents: NJ
Sandi instructed by The State Attorney 29 Western Road Central Port
Elizabeth
1
C
Section7 (1) OF
Promotion of Administrative Justice Act of 2000
.