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[2018] ZAECPEHC 23
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Tekalign v Minister of Home Affairs and Others (2774/2015) [2018] ZAECPEHC 23; [2018] 3 All SA 291 (ECP) (22 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NOS: 2774 / 2015
410 / 2018
578 / 2018
Dates heard: 8, 10 & 11 May
2018
Date delivered: 22 May 2018
In
the matter between
TAGESE
HILAFO TEKALIGN
Applicant
And
MINISTER
OF HOME
AFFAIRS
First Respondent
REFUGEE
APPEAL
BOARD
Second Respondent
CHAIRPERSON:
REFUGEE APPEAL
BOARD
Third
Respondent
REFUGEE
STATUS DETERMINATION
OFFICER
Fourth Respondent
AND
2 SIMILAR CASES
JUDGMENT
GOOSEN,
J.
[1]
In
recent years a large number of applications have been launched in
this Division by refugees challenging the refusal of their
applications for refugee status. There was a period when numerous
such applications would be enrolled for hearing in motion court
every
week. More recently we have witnessed an increase in the number of
matters being enrolled for hearing. Some of these
are enrolled
as ‘uncontested opposed’ matters i.e. matters in which
the respondents have filed a notice of opposition
but have not taken
any steps to file answering affidavits. The majority however are
enrolled on the unopposed roll. A feature of
these cases is that they
invariably are cases which were initiated three or four years ago.
The administrative decisions which
are sought to be challenged, more
often than not, were taken in the period between 2011 and 2014.
[2]
The
progress of these matters on the roll is anything but smooth. Orders
as sought in the notices of motion are seldom granted without
prior
postponements sought by the applicants in order to enable the
application papers to be supplemented. The case files indicate
that
the applications are regularly removed from the roll shortly before
or on the day of the hearing only to reappear on the roll
thereafter,
presumably after the papers have been supplemented in some form. The
lengthy delays associated with the applications;
the absence of
explanation; the poor quality of the papers and the slavish use of
standard text affidavits has caused several judges
to express their
disquiet at this pattern of litigation. The impression has been that
the litigation is driven by the pursuit of
costs orders rather than
the vindication of the rights of vulnerable refugees who have been
poorly treated by the Department of
Home Affairs.
[3]
On
8 May 2018, I presided in motion court. There were several matters
before me in which relief, in one form or another, was sought
against
the first respondent and the Department. When preparing the roll I
discovered that in the three matters which form the
subject of this
judgment (to be referred to herein as the
Tekalign
,
Makese
,
and
Mbuku
matters), the fact specific averments made to establish the
applicants’ entitlement to refugee status were identical.
Indeed
the founding affidavit contained not only the identical
narrative, it repeated precisely the same grammatical and other
errors.
Given that the applicants were represented by two firms of
attorneys and had apparently fled from different countries
[1]
at different times, I considered that the founding affidavits could
not possibly reflect the true experiences of the applicants.
It
struck me that the persons responsible for the drafting of the
affidavits must have known that this was so and that they were,
accordingly, party to an attempt to mislead the court.
[4]
I
requested the Registrar to draw the files in all matters against the
Department which had appeared on the motion court roll in
the
preceding two months and in which the two firms of attorneys had been
involved. I was provided with approximately 25 files.
On reading
these files I discovered 5 cases involving one of the firms –
JCM Attorneys – in which identical founding
affidavits had been
used. In one of those matters an order had been granted, including a
costs order.
[5]
When
the matters were called I informed counsel who appeared of what I had
discovered. I stood the matters down to enable them to
take
instructions. When the matters were called again, I directed that the
respective attorneys should file an affidavit to explain
how this had
occurred. The attorneys were directed to state whether their firm had
brought any other applications on the same factual
averments, and to
identify those that had been finalised and those that were pending. I
then stood the matters down to the opposed
motion court roll to
enable the affidavits to be filed. Mr Sizwe Maci filed an affidavit.
Mr Moorhouse, who was briefed by JCM
Attorneys in the
Makese
and
Mbuku
matters, requested further time. I therefore again stood the matters
down to Friday 11 May. On Friday morning the affidavit of
JCM
Attorneys had still not been filed. I heard submissions by Mr
Beyleveld SC, who had been briefed in the
Tekalign
matter by Maci Incorporated, and Mr Moorhouse. I then reserved
judgment in the matters. The affidavit on behalf of JCM Attorneys
was
delivered after the hearing.
[6]
Before
dealing with the explanatory affidavits it is necessary to set out
the content of the founding affidavit concerned and thereafter
deal
with certain features of the applications before me. The affidavits
filed by the applicants are, as I have already stated,
identical in
all respects. The key portion of the affidavit (in the
Tekalign
matter) is reproduced verbatim hereunder.
BACKGROUND
20.
I was born in Ethiopia.
21.
I arrived in the Republic of South Africa during, having gained entry
into the Republic of South
Africa through the Mozambique Boarder
post.
22.
Immediately after gaining entry into the Republic, I made my way to
the Durban Refugee Reception
Office to apply for asylum. I chose this
office because I was informed by fellow countrymen whom I met once
inside the Republic
that this was the best office from which I could
apply for asylum.
23.
I am a supporter of the SEPDC in my country of origin as will be
apparent from the record which will
be furnished in these
proceedings.
24.
Prior to leaving Ethiopia, the police came to my House looking for
supporters of the SEPDC, before
they could get into home I managed to
escape. I was a well-known supporter of the SEPDC amongst my peers at
school and I knew it
would be easy for the officers to get to me. I
was also well known for distributing the SEPDC pamphlets within my
community.
25.
My father informed was assaulted by members of the ruling Ethiopian
people’s Revolutionary
Democratic Front (hereinafter referred
to as EPRDP) forcing him to inform them of my whereabouts. The said
officers informed my
father that if he did not disclose my
whereabouts they would kill him.
26.
They further informed my father that once they found me they would
kill me and return my corpse
to him for burial.
27.
For the safety of my family and myself, my father advised me to flee
Ethiopia immediately.
28.
I then immediately left Ethiopia for Kenya, whilst in Kenya I was
informed by other refugees from
my country that the best place to
seek asylum was South Africa.
29.
After having hitched hiked over four countries, namely Kenya;
Tanzania; Malawi and Mozambique
I arrived in South Africa, and as
applied for asylum at the Durban Refugee Reception Office shortly
after my arrival in the Republic.
Upon my application for asylum I
was immediately issued with a section 22 permit which allowed me to
sojourn in the Republic whilst
y application for asylum was being
determined.
30.
About a few Months I was given an appointment with the RSDO whom
spoke to me in English. I cannot
communicate in English but only in
Amharic. Even though an Amharic interpreter was provided, I was told
not to trust him by other
asylum applicant whom I met outside the
Refugee Reception Centre. It was said that the said interpreter is an
agent of the Ethiopian
Government in South Africa and therefore did
not relating the truth to the RSDO when interpreting on behalf of
SEPDC supporters.
31.
The RSDO took a decision rejecting my application for asylum; I am
not in possession of the said
decision at this stage.
32.
I lodged an appeal against the decision of the RSDO with the Refugee
Appeal Board (RAB). I am,
not in possession of the said decision.
33.
During the appeal I had repeated what I had informed the RSDO’s
at my initial interview.
I cannot go back to my country as I face a
real risk of persecution if I am returned.
34.
I now seek to be granted a hearing in terms of Rule 53 so that a
judge of this Honourable Court
can determine my claim in terms of the
Act.
[7]
What
follows this portion of the affidavit is a section dealing with the
grounds of review. In the
Makese
and
Mbuku
matters the affidavits differ only in respect of the country of
origin; the acronyms of the political parties or organisations
concerned; and the countries traversed to get to South Africa. In
every other respect the averments are identical.
[8]
It
is necessary to record here that when the explanatory affidavit on
behalf of JCM Attorneys was delivered to me in chambers, Mr
Moorhouse
indicated that he had noted an error in the Makese founding affidavit
where in paragraph 20 it stated that the applicant
was born in
Ethiopia. I did not recall that error and on checking the papers
found that there was no error – it referred
to the applicant as
being born in the Democratic Republic of the Congo on 6 May 1970. Mr
Moorhouse showed me the copy of the affidavit
included in his brief.
It stated that the applicant was born in Ethiopia on that date. The
page was initialed by the applicant
and another person in an entirely
different place on the page. I will return to this hereunder.
[9]
In
addition to the identical averments there are several other features
which the applications have in common. Firstly, the founding
affidavit contains no averments which deal with the considerable
delay between the final decision of the Refugee Appeal Board and
the
launch of the application to review and set aside that decision. In
the
Tekalign
matter the decision was taken on 17 October 2013. On that date the
applicant signed receipt of the decision. The application was
commenced on 6 July 2015 well outside of the 180-day period provided
for in s 7 (1) of the Promotion of Administrative Justice
Act 3 of
2002 (hereinafter the PAJA). In the
Makese
matter the decision sought to be reviewed was taken on 24 May 2013.
In the
Mbuku
matter it was taken on 28 July 2011. These applications were
commenced on 9 February 2018 and 23 February 2018 respectively.
[10]
The
second common feature is the claim made by the applicants that they
are unable to communicate effectively in English and that
they were
not provided with adequate or appropriate interpretation services.
They all complain that the interpreter who assisted
them was alleged
to have been an agent for the government of their home country. The
allegation of a lack of language proficiency
is central to the attack
on the merits of the decisions taken by the Refugee Status
Determination Officer (RSDO). The contention
is that the applicants
were unable to present their cases for refugee status and that the
failure to provide proper interpretation
services vitiated their
right to be heard. Notwithstanding this assertion, the allegation of
an inability to convey the basis of
the claim for asylum status is
not repeated in relation to the Refugee Appeal Board (RAB). On the
contrary the applicants assert
that they conveyed to the RAB
precisely what they conveyed to the RSDO. None of the applicants
state that at the time of deposing
to the founding affidavit they
were able to communicate effectively in English. On the affidavits
therefore it must be accepted
that they were not so able to
communicate. Yet none of the applications include an affidavit
deposed to by a proficient interpreter
who is able to swear that the
instructions that were taken were properly interpreted and that the
content of the affidavit –
written in English – was
explained in translation.
[11]
The
probability that three persons each seeking to be granted asylum
status on the basis of political persecution in their home
country
would experience precisely the same incidence of persecution is so
remote that it can be discounted entirely. The circumstances
in which
a person is compelled to flee his or her home country and seek asylum
in another country is a fact-specific aspect of
applications of this
nature. This is not to say that there is not scope for patterns of
political persecution and for individual
asylum seekers to share
similar experiences. But the state of events which trigger the flight
to exile is unlikely to be precisely
the same or to follow the same
sequence and to be based on precisely the same conditions. This is
particularly so when the asylum
seekers hail from different countries
separated geographically by huge distances and by different periods
in time. Yet in each
of the cases before me the applicants swore
under oath that the content of the affidavit, and therefore the
narrative described,
was true and correct.
[12]
It
is with this in mind that I turn to the explanations offered by the
attorneys engaged in these matters.
[13]
The
affidavit filed by Mr Sizwe Maci of Maci Incorporated provides a
brief background to alleged defects in procedure encountered
in many
asylum seeker applications processed by the Department of Home
Affairs. These defects are what form the basis of the applications
brought on behalf of many refugees. Mr Maci states that in regard to
the
Tekalign
matter the applicant approached his firm in 2015. At that time he
employed three candidate attorneys and a typist who were responsible
for the preparation of the review applications. According to Mr Maci
these individuals were, for reasons not germane to the present
proceedings, relieved of their duties and are presently all employed
by JCM Attorneys.
[14]
Mr
Maci stated that the founding affidavit in the
Tekalign
matter was drafted by Mr Gara, one of the candidate attorneys
employed by Maci Incorporated. Mr Maci states that he did not oversee
the drafting of the affidavit, which he concedes he ought to have
done. He admits that he signed the notice of motion. According
to
him, no orders have been sought in review applications prepared by
these individuals. This is because of ongoing settlement
discussions
relating to the many applications which have been commenced. He
explained that in relation to the
Tekalign
matter he instructed counsel to move for a postponement so that the
papers could be supplemented in certain respects.
[15]
In
response to the court’s request to identify any other matters
in which the same founding affidavit has been utilised Mr
Maci
supplied the name and case numbers of eight matters.
[2]
The names and case numbers are set out in the table below. I was
advised that these matters are pending and have not as yet been
enrolled for hearing.
[16]
Mr
John Mlombo, who is the sole director of JCM Attorneys, states in his
explanatory affidavit that he was a former director of
the firm Maci
Incorporated. He left that firm in 2012 to start his own practice,
styled JCM Attorneys. In July 2015, he recruited
several employees
from Maci Incorporated. Mlombo explains that he has five office
managers who each deal with five different departments.
He does not
name the managers nor state whether they are admitted attorneys. One
of the departments deals with immigration and
refugee matters.
According to him there are ‘about two candidate attorneys’
who work under the manager.
[17]
I
reproduce the explanation, such as it is, hereunder in the terms
provided:
13. I
wish to state that the Precedents used by Maci and JCM are similar
precedents if not the same as my Manager in
Immigration and Refugee
Departments was responsible for drafting the applications at Maci
before I recruited him.
14.
With regard to the similarities in the facts of these matters; I have
been made to believe that each application
is brought after a
consultation with the Applicant and in such the information contained
in the affidavits as the basis of the
applications would be coming
from the client him/herself.
15. I
was not aware that there are applications wherein the facts are
similar and the applicants are not even related,
as I have stated I
am not involved in drafting and take this Honourable Court’s
sentiments
very seriously
and undertake to investigate
the Court’s concerns.
[18]
There
is no affidavit deposed to by the person responsible for drafting the
applications issued by JCM Attorneys. Mr Mlombo provided
a list of 8
similar matters in which orders were sought and obtained. He also
provided a list of 32 matters which are pending.
I requested the
Registrar to furnish me with these files and any other files of
matters involving the firm which may also involve
the use of the same
factual averments. It transpired that 54 matters were identified
which, with the three matters before me, brought
the total number of
applications founded on identical affidavits to 57. The details of
these matters are set out in the tables
below.
[19]
The
first table indicates the cases in which orders have been granted.
[20]
The
table above indicates that orders were sought and obtained in two of
these matters on the same day. The instructing attorneys
were JCM
Attorneys and the same counsel appeared (although not the counsel who
appeared in the present JCM matters). I do not know
what transpired
at the hearing of the applications. I intend no criticism of the
judge concerned. I am nevertheless constrained
to comment that it
strikes me as alarming that orders can be sought and be granted on
identical allegations made by two unrelated
applicants. In my view,
it would have been incumbent upon counsel appearing in the matters to
draw the attention of the court to
the fact that the papers were in
all material respects identical. I do not know whether that was done.
I intend therefore to refer
this judgment to the Bar Council of the
Eastern Cape Society of Advocates so that the matter may be
investigated. Such investigation
ought not to be confined to the
single instance referred to above. The orders were granted within a
relatively short period of
time. The engagement of counsel in all
these matters ought therefore to be considered by the Bar Council.
[21]
There
is a further issue – over and above the concern about the
misleading effect of the averments which I address below -
which
arises from the fact that orders were granted in matters in which
identical affidavits were utilised. This concerns the propriety
of
the conduct of the attorneys in raising fees for the work done by
them.
[22]
In
each instance an order of costs was granted against the respondents.
In the matter of
Ago
(Case no 3816/2015) an order was granted on 10 October 2017. The file
indicates that a bill of costs was taxed and that the Taxing
Master
issued her allocatur on 7 December 2017.
[23]
I
reproduce hereunder a few of the relevant items from the Bill.
No
Date
Item
Fees
1
01-10-15
Attending
to Consultation with client perusal of client’s
documentation and taking instructions
1052-00
2
Drafting
of Founding Affidavit
2367-00
3
Telephonic
to client to arrange appointment for commission of founding
affidavit
263-00
4
[Consultation]
with client to confirm correctness of Founding affidavit and
explained commissioning to procedure
263-00
14
[03/03/16]
Consultation
with to prepare Supplementary to affidavit
526-00
15
19/06/16
Drafting
of supplementary affidavit
2367-00
16
Attending to consultation to
confirm correctness of affidavit and explaining commissioning
procedure
263-00
[24]
What
emerges from this is that the attorneys have charged a substantial
fee for the drafting of the founding affidavit. They have
also
charged a fee for a consultation to confirm the correctness of the
averments contained in the affidavit prior to it being
deposed to
before the commissioner of oaths. In this instance they have also
charged a substantial fee for the drafting of a supplementary
affidavit. In the
Ago
matter it was necessary to seek an extension of the 180-day period
provided for in s 7(1) of PAJA. The basis for the s 9 application
was
only set out in the supplementary affidavit which was filed more than
eight months after the application was launched.
[25]
In
Sibiya
v Director-General: Home Affairs & Others and 55 Related Cases
[3]
Wallis J (as he then was) dealt with a similar instance where large
numbers of applications were brought on standard text affidavits.
In
that matter the standard text affidavit was only changed in minor and
essentially irrelevant respects. Nevertheless the bills
of costs
which were typical of the charges raised in those matters indicated
that the attorneys were charging fees for consultations
and drafting
of the founding affidavits in each instance. The learned judge
concluded that the charges levied did not in fact reflect
the work
actually performed by the attorneys. The learned judge said the
following,
[4]
I
have considerable reservations whether any such consultation or
process of taking instructions or drafting actually occurs beyond
perhaps a clerk recording the name and some minor and routine
personal particulars about the applicant in order to feed them into
the computer program and print off the application papers.
[26]
Wallis
J went on to state,
[5]
I
have drawn attention earlier in this judgment to the basis upon which
the bills of costs are prepared in these cases and presented
for
taxation. For reasons already given, I have substantial reservations
as to whether the bills of costs presented for taxation
by these
attorneys are in fact an accurate reflection of the work that they
perform or whether they are, like the application papers,
prepared as
a matter of rote in the knowledge that they will be agreed with the
State Attorney. …..
Not
only am I concerned whether the bills of costs being presented in
these cases accurately reflect the work done by the attorneys
but I
am also concerned, bearing in mind the production-line manner in
which the papers in these cases are produced, whether it
is
permissible or appropriate for the attorneys simply to charge in
accordance with the tariff laid down in rule 70, or whether
this
constitutes a form of overreaching. I appreciate that it is not
overreaching of their own client because they are not charging
their
clients fees. However, it seems to me equally inappropriate for an
attorney to present a bill of costs for taxation to the
opposing side
where the fees claimed are exorbitant in relation to the amount of
work actually done and the nature of that work.
That is inconsistent
with the bill being a party and party bill.
[27]
I
share similar reservations in relation to the matters now under
consideration. When it is considered, as will become clearer
hereunder, that the founding affidavits are entirely in standard form
including obvious and gross grammatical errors, it is difficult
to
conceive that any professional skill and expertise is applied at all
to the production of these papers. When the deficiencies
in the
papers are highlighted at the hearing of the applications a
supplementary affidavit is produced. In some instances it is
produced
pursuant to the filing of the record of proceedings in terms of Rule
53. In such cases, it appears, a further fee is raised
in the bill of
costs. I do not know whether the attorneys are charging their clients
a fee for the work done. In the event that
the attorneys are charging
their clients fees, they may well be overreaching. In any event, I
agree with Wallis J that the fees
charged in the bill that I have
considered, are inappropriate having regard to the work actually
undertaken by the attorney.
[28]
I
shall for this, and other reasons explained hereunder, refer these
concerns to the Cape Law Society to consider whether an investigation
ought to be initiated.
[29]
It
is in my view equally necessary that the respondents, against whom at
least eight costs orders have been made in the finalised
matters,
should be appraised of the potentially significant prejudice
occasioned to the public-purse consequent upon the obtaining
of
orders upon identical founding affidavits. They should also be
appraised of the concerns as to the propriety associated with
presentation of bills of costs on the basis drawn in the
Ago
matter. I shall for this reason also direct that a copy of this
judgment be forwarded to the State Attorney for presentation to
the
Minister.
[30]
I
should at this juncture also comment on the fact that these matters
are not opposed. A litigant is of course not obliged to oppose.
It
may be that the respondents, as advised, consider that they have no
answer to the applicants’ case. In that event it might
be
expected that the respondents would indicate that the order be taken
without opposition thus curtailing costs. We are here dealing
with a
Minister as the political head of a department who, in terms of the
rules of court, acquires knowledge of the legal proceedings
when the
papers are served on the State Attorney. Immediately litigation is
commenced the risk of an adverse cost order arises.
It is therefore
to be expected, particularly where public funds are at issue, that
such risk is properly appraised. Since service
of the papers in these
matters is always effected on the local State of Attorney, that
office is duty bound to act with due regard
to the substantial costs
risks that necessarily accompany the litigation. It strikes me as
inconceivable that the State Attorney
could not be aware of the use
of standard text and identical affidavits to support the relief
sought, including the costs orders.
It may very well be that the
State Attorney has drawn this to the attention of the respondents. In
that event the failure to act
lies at the door of the respondents. It
seems to me however, that this issue requires investigation and to
this end the Minister
ought to be personally appraised of the
situation.
[31]
I
turn now to the matters which are presently said to be pending before
this court. The table below reflects the cases involving
Maci
Incorporated.
[32]
What
follows are the matters involving JCM Attorneys.
[33]
I
have studied the case files in all of these matters. I am mindful
that those matters which are pending are not before me for
adjudication. I shall therefore confine my comments in relation to
these matters to certain features which emerge from a perusal
of the
applications which bear directly upon those matters presently before
me. Before doing so I wish to indicate that where
there are
gaps in the tables this indicates that the case files either do not
contain the relevant documents or that the information
is lacking in
such documents as do occur in the case files. The column headed
“Status” contains dates on which the
cases are enrolled
for hearing where that has occurred. I note in this regard that
several cases have been set down on the unopposed
motion roll months
in advance. Why this is so is a mystery since, ordinarily, an
unopposed matter can be enrolled for hearing on
a few days’
notice since there is no waiting time for unopposed applications.
[34]
It
will be noted that a few applications have been withdrawn. In one
instance Maci Incorporated filed a notice of withdrawal in
October
2016. Despite this JCM attorneys filed a Notice of Substitution of
Attorneys and a Notice of Set down on 3 March 2018.
There is
one matter (Tagese, case no 3103/15) which is a duplicate of the
papers in case no 3269/15 – the difference being
that a notice
of motion dated 7 August 2015 was filed in the former and one dated
21 August 2015 in the latter. It may be that
this is an error. The
state of the case files in the pending matters however, reflects a
generally lackadaisical approach to the
litigation and strengthens
the view that the litigation is conducted with little regard to the
rights and interests of the applicants,
but rather with a greater
concern for the costs orders that may eventuate.
[35]
I
turn now to considering the pending cases in general. The first
striking feature is that the identical averments are deposed to
by
applicants who hail from 8 different countries, namely Ethiopia,
Bangladesh, Nigeria, Kenya, Tanzania, Cameroon, Ghana and the
Democratic Republic of the Congo. I have already remarked on the
improbability that each of these applicants will have experienced
precisely the same sequence of events. The fact that the identical
averments are made destroys the veracity of the allegations
made
under oath by each of the applicants concerned.
[36]
While
the narrative is the same there are very subtle changes made to the
text. In the present matters before me the narrative centres
on the
applicant’s ‘father’ and the hearsay allegations of
a risk to the applicant’s life as conveyed to
the ‘father’.
This father figure features in other cases too. In still others the
central figure is an ‘uncle’,
whose role in the narrative
is precisely the same as the erstwhile ‘father’.
[37]
This
subtle change does not signify a ‘different’
fact-specific experience. Instead it speaks to the role of the
drafter
of the affidavit. It indicates that the drafter, in addition
to making the changes required for a particular applicant, has
altered
a pre-existing narrative as recorded in the template of the
affidavit. That a template is being used is to be discerned from the
repetition of identical grammatical errors. The ‘altering’
of the narrative, of course, can only occur consciously.
The drafter,
knowing that he or she is using a pre-existing narrative introduces a
change of character by referring to an ‘uncle’.
Far from
lending any credibility to the altered narrative, it indicates a
deliberate and conscious introduction of a ‘fact’
which
cannot possibly be true in every instance. This, in my view, points
to a calculated attempt to mislead a court.
[38]
A
court which is faced with allegations made in an affidavit in a
matter which is unopposed will generally accept those allegations
as
establishing the factual basis upon which to adjudicate the matter.
However, where such allegations are untenable or far-fetched,
a court
is entitled to reject them. That is the case in this instance.
[39]
The
discovery of such pervasive use of a standard template by both firms
of attorneys caused me to consider how it is possible that
every one
of the applicants concerned could depose to allegations which are
manifestly false. Language proficiency and the absence
of an
interpreter may explain this. If that is so then the conduct of the
attorneys involved is even more troubling. It is equally
possible
that the process of attestation of the affidavits is defective.
[40]
With
this latter consideration in mind I examined the certificates of the
commissioners of oath engaged in the administration of
the oaths in
the present matters and in the pending matters.
[41]
In
the Maci Incorporated matters which are pending, 7 of the 11 founding
affidavits are attested before the same commissioner.
I use the
term ‘same commissioner’ cautiously. The handwriting of
the attestation appears the same. Only a portion
is sufficiently
legible to discern the details of the commissioner. That portion
refers to ‘Mount Road’ and ‘warrant
officer’
– nothing else can be discerned. The stamp that appears over or
alongside the handwritten attestation differs:
in only one matter is
the date stamp that of “Integrated Justice System Court Centre,
Station Commissioner, Mount Road, South
African Police Service”.
In the other matters the stamp is either that of “The Clerk of
Criminal Court, PE Magistrate’s
Office” or that of
“Magistrate, Port Elizabeth Magistrate’s Court”.
[42]
This
same commissioner attestation appears – with the variations as
between Magistrate and Clerk of the Court - in 10 of the
35 JCM
Attorneys matters. It should be stated that 4 of the JCM files
contain no founding affidavit. One founding affidavit is
not attested
and a further one is incomplete and excludes the last page where it
might be expected the deponent has signed and
taken the prescribed
oath.
[43]
The
fact that a commissioner of oaths is regularly called upon to
administer the oath on behalf of a firm of attorneys is not, in
itself, worthy of comment. However, it is striking that the same
person acts as a commissioner in a total of 20 of the 57 cases
–
i.e. In the
Tekalign
case, in two of the finalised cases and 17 of the pending cases.
Furthermore the use of different date stamps which suggest that
the
same commissioner is either a police official or a clerk of the court
or a magistrate raises suspicion about the authenticity
of the
attestation. In several other files the affidavits purport to have
been commissioned by a clerk of the court or police officer
where
only an illegible signature appears together with a generic stamp.
The full names, office, designation and address of the
commissioner
concerned appears in only a few matters. The majority,
prima
facie
,
do not comply with the Regulations which regulate the administration
of an oath. This is the case in the
Makese
and
Mbuku
matters before me.
[44]
In
the context of such a large number of affidavits containing
manifestly false averments, the apparent deficiencies in the way
that
the affidavits are commissioned raises still further doubt that the
oaths have been properly administered to the deponents
in accordance
with the regulations.
[45]
I
wish to return, in this context, to the bill of costs discussed
above. It will be recalled that the bill includes an item for
consultation to confirm the correctness of the founding affidavit. I
am aware that this is only one bill of costs. However, given
the fact
that the founding affidavit in that matter contains precisely the
same allegations which, in the light of the reproduction
of those
averments in 56 other cases, are false, it is to be seriously doubted
that the attorneys can have consulted to confirm
the correctness of
the affidavit.
[46]
I
return also to the disclosure made by Mr Moorhouse of the affidavit
contained in his brief in the Makese matter. It seems to be
that the
relevant page must have been replaced at some stage so that the court
file contains one version and the attorney’s
file another. This
is deeply troubling. It raises still further suspicion about the way
this litigation has been conducted by the
attorneys concerned.
[47]
How
does the existence of these 54 other cases, each founded upon
identical allegations, impact upon the three matters presently
before
me? In my view the impact is to render the applications fatally
defective. A court does not lightly disbelieve averments
made under
oath where there is no challenge to the allegations in opposing
affidavits. Yet in this matter, as in the
Sibiya
matter referred to above, the extent of the use of the affidavit; the
conscious ‘alteration’ of the narrative and its
extensive
use; the deficiencies in the commissioning of the affidavits; and the
substantive deficiencies in the formulation of
the applicants’
entitlement to the relief sought, suggest that the affidavits cannot
be regarded as trustworthy.
[48]
It
was argued in relation to the
Tekalign
matter that the fact-specific portions can be ignored since there is,
on the papers, a basis to grant the relief. This it was said
is to be
found in the composition of the Refugee Appeal Board which appears to
have sat with only one member. I disagree. To adopt
this approach
would be to ignore what is at face value, an abuse of the process and
to countenance a deliberate attempt to mislead
this court. The same
applies in the
Makese
and
Mbuku
matters. In these matters the commissioning of the affidavits does
not comply with the regulations, so that there is not in fact
a
proper affidavit before the court. Furthermore the papers do not
address the question of an extension of the 180-day period provide
for in s 7(1) of PAJA. This is despite the fact that the
applications, launched in 2018, seek to review decisions taken in
2011
and 2013 respectively. Counsel sought to remove these matters
from the roll so that service could be effected upon the fourth
respondent
and, presumably to attempt to correct other substantive
deficiencies. No purpose would be served by allowing applications
tainted
in the manner described above to be served upon the fourth
respondent.
[49]
The
only appropriate order to be made in relation to the three
applications before me is to dismiss them.
[50]
In
coming to this conclusion I am acutely aware that the applicants
suffer the consequence of such dismissal of their claims.
Responsibility
for this however lies squarely upon the shoulders of
the attorneys involved. The order made in respect of the three cases
before
me does not dispose of the pending applications. Their fate is
to be determined by the court which hears the applications in due
course. I have given consideration to whether it would be appropriate
to set out certain directives, with the assent of the Judge
President, to regulate the adjudication of the pending applications
referred to above. On reflection it is unnecessary to do so.
[51]
The
circumstances in which the 57 applications have been prosecuted
raises, as I have explained, very serious questions regarding
the
propriety of the conduct of the attorneys concerned. These are
matters to be investigated by the Law Society. The conduct described
however, may very well also encompass criminal conduct. For this
reason I shall direct that a copy of the judgment be forwarded
to the
Director of Public Prosecutions to consider whether or not to
initiate an investigation in this regard.
[52]
In
the result I make the following orders:
1.
In
case numbers 2774/15, 410/2018 & 598/2018 the applications are
dismissed.
2.
The
registrar of this court is directed to send a copy of this judgment
to:
2.1
The
Cape Law Society and to draw their attention to paras [21] to [28];
2.2
The
Eastern Cape Society of Advocates and to draw to their attention par
[20]; and
2.3
The
State Attorney and to draw attention to paras [29] & [30].
3.
The
registrar of this court is further directed to send a copy of this
judgment to the Director of Public Prosecutions, Grahamstown.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the applicant in case no 2744/15
Adv. A.
Beyleveld SC, assisted by Ms. I Bands
Instructed
by Maci Incorporated
For the
applicants in case nos.410/2018 & 598/2018
Adv. A
Moorhouse
Instructed
by JCM Attorneys
[1]
In
Tekalign
the applicant’s country of origin is Ethiopia. In the
Makese
and
Mbuku
matters the country of origin is the Democratic Republic of the
Congo.
[2]
Mr Maci
filed two affidavits. He identified four matters in the limited time
available before filing the first affidavit and a
further four
matters by the time the case was to be heard.
[3]
2009 (5) SA
145 (KZP)
[4]
At 168D-E
[5]
At
179G-180B