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[2012] ZASCA 42
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Minister of Home Affairs v Maboho and Others (233/11) [2012] ZASCA 42 (29 March 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 233/11
Reportable
In the matter between:
MINISTER
OF HOME AFFAIRS
…......................................................
APPELLANT
and
T
MABOHO AND 117 RELATED CASES
….................................
RESPONDENTS
Neutral citation:
Minister of Home Affairs v
Maboho
(233/11)
[2012] ZASCA
42
(29 March 2012).
Coram:
Cloete, Malan, Leach and Tshiqi JJA, and
Plasket AJA
Heard:
13 March 2012
Delivered:
29 March 2012
Summary: Identity document: order of court a quo
directing that
identity documents be issued to applicants, replaced
with an order that
their applications be considered, together with a
structural interdict to
facilitate the process. The problem of numerous
applications for the
same relief being brought by the same attorneys on
virtually the same
papers, discussed.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High Court (Thohoyandou)
(Makhafola J sitting as
court of first instance):
1 The appeal against the order made by the court a quo
succeeds, to the extent set out in paragraph 2.
2 The order made by the court a quo is set aside and the
following order substituted in each application:
‘
(a) The Department of Home
Affairs is ordered to consider the applicant’s application for
the issue of an identity document
and file an affidavit with this
court (with a copy to the applicant’s attorney) on or before 29
June 2012, or within such
further period as may be agreed by the
parties or allowed by this court on good cause shown, stating:
(i) that an identity document has been issued to the
applicant; or
(ii) that the applicant’s application for an
identity document has been refused, and if so, the reasons for the
refusal; or
(iii) that if it has not been possible to process the
applicant’s application, the reasons therefor and if
information is
required for this purpose, what attempts have been
made to obtain such information.
(b) Either party may on notice apply to this court for
further or alternative directions for the purpose of bringing the
application
to finality.
(c) The costs to date are reserved.’
3 The appeals against the interlocutory orders made by
the court a quo are dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (MALAN, LEACH AND TSHIQI JJA, AND PLASKET
AJA CONCURRING):
[1] In 2007 the 118 respondents, as applicants, each
instituted motion proceedings in the Limpopo High Court, Thohoyandou,
for an
order directing the appellant, the Minister of Home Affairs,
to issue them with temporary identity documents and thereafter, with
identity documents. On 9 November 2009 the court a quo (Makhafola J)
ordered that the former be furnished within three months,
and the
latter, within six months, of the date of the order. It would be
convenient to refer to the parties as ‘the applicants’
and ‘the Minister’.
[2] The Minister applied to the court a quo for leave to
appeal against the order and three interlocutory orders. The court a
quo
dismissed the application and ordered the attorney dealing with
the matter in the office of the State Attorney, Thohoyandou, to
pay
the costs of that application
de bonis
propriis
. This court subsequently granted
leave to appeal, set aside the costs order relating to the
application for leave to appeal and
ordered that those costs,
together with the costs of the application for leave to appeal in
this court, be costs in the appeal.
[3] It is not necessary to say anything more about the
appeals against the interlocutory orders made by the court a quo than
this:
the issues raised were of such a nature that the orders sought
on appeal would have no practical effect or result, save in regard
to
costs; and in my view, as counsel representing the Minister found
himself unable to submit that exceptional circumstances existed
that
required questions of costs to be considered, these appeals should be
dismissed in terms of s 21A of the Supreme Court
Act, 59 of
1959.
[4] However, the appeal against the orders made by the
court a quo requiring the Minister to furnish the applicants with
identity
documents, stands on a different footing. Before dealing
with the appeal against those orders, it is necessary to set out the
facts
and the law.
[5] So far as the facts are concerned, we have before us
only one application, that of Ms Tsireledzo Maboho. We were informed
from
the bar by counsel representing the Minister that, save in
regard to the names of the applicants, their village addresses, their
ages, the dates upon which and places where they applied for identity
documents and the dates of their last attendances at the
offices of
the Department of Home Affairs, the applicants’ founding
affidavits were in identical terms. It is at this juncture
that I
wish to deal with the problems that have occurred, particularly in
the Eastern Cape
1
and Kwazulu-Natal
2
in regard to social grant applications and applications
similar to the present. That the problem persists, and is not limited
to
those jurisdictions, is illustrated by the 118 applications which
are the subject matter of this appeal.
[6] The law reports are replete with reported cases (and
one shudders to think how many unreported cases there have been) that
show
that there are very many persons who are entitled to social
grants and identity documents who have not been provided with them
due to laziness, lack of capacity or gross ineptitude in the
government departments concerned. This has evoked a strong response
from the courts: see for example the remarks of this court in
Permanent Secretary, Department of Welfare,
Eastern Cape & another v Ngxuza & others
2001
(4) SA 1184
(SCA) para 8 and
Jayiya v Member
of the Executive Council for Welfare, Eastern Cape & another
2004 (2) SA 611
(SCA) para 18. In the former case,
Cameron JA said:
‘
The
papers before us recount a pitiable saga of correspondence, meetings,
calls, appeals, entreaties, demands and pleas by public
interest
organisations, advice offices, district surgeons, public health and
welfare organisations and branches of the African
National Congress
itself, which is the governing party in the Eastern Cape. The Legal
Resources Centre played a central part in
co-ordinating these
entreaties and in the negotiations that resulted from them. But their
efforts were unavailing. The response
of the provincial authorities
as reflected in the papers included unfulfilled undertakings, broken
promises, missed meetings, administrative
buck-passing, manifest lack
of capacity and at times gross ineptitude.’
In the latter case, Conradie JA referred to ‘. . .
the laziness and incompetence which is at the root of the malaise in
the
Eastern Cape Department of Welfare . . . .’
In
Vumazonke v MEC for Social Development,
Eastern Cape and three similar cases
(above,
n 1) Plasket J went so far as to direct the Registrar to serve copies
of the judgment on the Premier of the Eastern Cape
Province, the
Chairperson of the Social Development Standing Committee of the
Eastern Cape Provincial Legislature, the Minister
of Social
Development in the National Government, the Chairperson of the Human
Rights Commission and the Chairperson of the Public
Service
Commission. In the
Sibiya
matter
(above, n 2, para 63) Wallis J roundly criticised the inefficiency of
the Department of Home Affairs in dealing with applications
similar
to the present. But if the applications which are the subject of the
present appeal are anything to go by, the problem
continues.
[7] The difficulty facing the courts is compounded by
the desire of some attorneys not so much to assist members of the
public to
obtain their due, but to exploit the situation for personal
gain. There can of course be no objection to attorneys assisting
clients
to assert their rights by litigation. That is a primary
function of the attorneys’ profession; and if some firms of
attorneys
are prepared to act pro bono or on a contingency basis,
they are performing a public service. Nor can there be an objection
if
a standard format or precedent is used to bring an application on
behalf of a number of clients ─ provided that the standard
format is tailored to fit the circumstances of each particular
applicant. Where the abuse comes in is where this is not done and
the
client (who more often than not is illiterate) deposes to allegations
that are not relevant to his or her case or, worse, that
are not
true. This problem can be dealt with by the courts directly by
scrutinizing each application. The court has the power in
terms of
Uniform rule of court 6(6) to make no order (save as to costs) but to
grant leave to the applicant on the same papers
supplemented by such
further affidavits as the case may require ─ or to dismiss the
application. In deciding which course
to follow, a court should of
course be careful not to visit the sins of the attorney on the client
─ particularly where,
in the words of Cameron JA in
Permanent
Secretary, Department of Welfare, Eastern Cape & another v Ngxuza
& others
above, at para 11, the
applicants are ‘drawn from the very poorest within our society’
and ‘have the least chance
of vindicating their rights through
the legal process’.
[8] Large scale litigation in similar matters by a
particular attorney can of course be the product of touting, and can
also lead
to bills of costs in standard form being submitted for
taxation where the amounts claimed do not accurately reflect the
amount
of work done by the attorney. In addition, taxation at the
normal tariff applicable for individual applications may not be
appropriate
where an attorney has produced a ‘job lot’.
The problem is exacerbated by the fact that taxations are frequently
unopposed
and vast amounts of taxpayers’ money are wasted.
3
Those abuses can, and one hopes they will be, addressed
first by the law societies and, ultimately, by the courts.
[9] It is difficult to see what more high courts can do.
As a matter of practicality, those most affected have introduced
local
rules to regulate the disposal of the avalanche of cases of the
nature under discussion: rule 21 of the ‘Joint Rules of
Practice
for the High Courts of the Eastern Cape Province (the
Provincial Divisions Currently Known as the Ciskei Division, the
Eastern
Cape Division and the Transkei Division)’ which came
into force on 1 January 2008
4
and rule 30 of the ‘Practice Manual of the KZN
Division of the High Court’
5
which was circulated to practitioners on 1 June 2009,
deal with social grant applications. Apart from that, the remedy most
likely
to achieve results is not an order directing compliance by
government officials with the prescripts of the relevant legislation,
but a structural interdict supervised by the court.
6
[10] I return to the present appeal. In the application
forming part of the record before us, Ms Maboho stated that she is 18
years
old. On 9 May 2007 she applied for an identity document at the
Gole Secondary School in Thohoyandou. She was assisted by employees
of the Department in completing the necessary application forms; she
furnished two photographs of herself, and her fingerprints
were
taken. She was not issued with a receipt. She was told to return
after three months. She did so, and an employee of the Department,
after checking on the computer system, advised her that her
application had not been processed. She again made enquiries on at
least two subsequent occasions, the last being on 5 October 2007, and
received the same answer. She said that she was being severally
prejudiced because, without an identity document, she could not apply
for a driver’s licence or a bursary, and she could
not obtain
employment, open a bank account, apply for a passport or vote.
[11] Counsel for the Minister pointed out that the same
prejudice is alleged by all of the applicants; but that does not of
itself
reflect adversely on the veracity or the cogency of the
allegations made. Had there been allegations that could not have been
true,
it was incumbent on the Minister’s legal representatives
to point this out. Nothing of this nature was raised. I have no
difficulty in accepting at face value that each of the applicants are
suffering the same prejudice. Indeed, the lack of an identity
document carries with it so many disabilities that the prejudice
speaks for itself.
7
[12] So far as the law is concerned, the combined effect
of the
Identification Act 68 of 1997
and the
Births and Deaths
Registration Act 51 of 1992
may be summarised as follows:
(a) there is an obligation on South African citizens
(whether or not outside the Republic), and persons who sojourn
permanently
or temporarily in the Republic, for whatever purpose, to
have a birth registered within 30 days ─ although this can be
done
at a later date subject to further requirements being
satisfied;
8
(b) the particulars of a birth have to be recorded in
the population register ─ but only in the case of persons who
are South
African citizens and persons who are lawfully and
permanently resident in the Republic;
9
(c) the Director-General of Home Affairs is obliged to
assign an identity number to every person whose particulars are
included
in the population register;
10
(d) any person who is a South African citizen or who is
lawfully and permanently resident in the Republic is required, upon
attaining
the age of 16 years, to apply for an ‘identity card’
11
but until a date determined by the Minister, green
bar-coded identity documents will continue to be issued.
12
[13] As I have said, the applications were instituted in
2007. Notices of intention to oppose were delivered on behalf of the
Minister
but no answering affidavit followed. Months went by.
Eventually, in 2009, the matters were all set down for hearing. In
heads of
argument produced on the morning of the day on which the
applications were to be heard, the legal representatives of the
Minister
for the first time submitted that, as the applicants had not
alleged that they were South African citizens or had permanent
residence,
their applications were fatally defective.
[14] The court a quo gave its order on 9 November 2009
and its reasons more than six months later on 28 May 2010. The
principal
finding attacked on appeal was that the applicants had
‘complied with the [Identity Act] in that they are resident in
specific
villages within Thohoyandou, a location in the Republic, and
therefore fall within the parameters of ss 3, 9, 10 and 15 of
the Act’. Counsel for the Minister pointed out that it does not
follow from the fact that the applicants are resident in
the
Republic, that they are South African citizens or that they are
lawfully and permanently resident in the Republic, and submitted
that
they had accordingly not shown that they were entitled to identity
documents in terms of the Identity Act. Although I agree
that the
applicants have not shown that they are entitled to identity
documents, this fails to address the point that the applicants
averred that they had already made applications for identity
documents, assisted by officials of the Department, and that those
officials had accessed the progress (or lack thereof) of their
applications on a Department of Home Affairs computer; and it is
those applications on which the applicants relied for the relief
sought.
[15] However, the relief sought by the applicants and
granted by the court a quo was incompetent. The applicants should
have asked
for an order in terms of s 6(2)(g) read with s 6(3)
of the Promotion of Administration of Justice Act 3 of 2000,
13
requiring their applications to be considered. They were
not entitled to an order directing a successful outcome.
[16] I interpose to remark that it was not contended on
behalf of the Minister that there had been insufficient time after
the applications
were made to process them before these proceedings
were launched. In the application which forms part of the record
before us,
Ms Maboho applied for an identity document on 9 May 2007.
She was told to return three months later. She did so, more than
once.
The notice of motion was issued on 26 October. More than five
months had elapsed. Prima facie, that seems to me to have been an
unreasonable delay entitling her to invoke s 6(3)(a) of PAJA.
14
[17] The legal representatives of the Minister were at
fault in not causing an answering affidavit to be delivered stating
that
without the identity numbers or dates of birth of the
applicants, the Department could not access any application for an
identity
document ─ which, it was suggested from the bar, and
despite the allegations made by each applicant to the contrary, was
the actual problem. We were also told from the bar that if a birth
has not been registered, with the consequence that an identity
number
has not been assigned, an application for an identity document is
automatically converted to an application for a late registration
of
birth to enable an identity number to be assigned so that an identity
document can be issued. But none of this is on the papers.
On the
other hand, it would be pointless to make an order with which the
Department could not comply. That would be in no-one’s
interests, least of all the applicants’. Counsel representing
the Minister informed us that none of the applicants has yet
received
an identity document despite the lapse of well over four years.
[18] It therefore seems to me that the solution would be
a structural interdict aimed at ensuring that the applications are
considered
expeditiously, but giving the court a quo powers to
supervise the process ─ in particular, by enabling the
officials of the
Department to obtain the information they require.
There can be no prejudice to the applicants, who filed a notice of
intention
to abide the decision of this court and who were
accordingly not represented at the hearing of the appeal. Counsel for
the Minister,
having taken an instruction from his attorney, agreed
that such an order would be appropriate. He also agreed that the
various
concerns that the Minister’s legal representatives have
about the affidavits placed before the court a quo, would be
addressed
if such an order were to be made. It is not necessary for
me to catalogue these concerns. They relate, broadly speaking, to the
manner in which and circumstances under which the founding affidavits
were attested.
[19] It is perhaps desirable that I spell out how the
purpose of this court’s order could be achieved, without in any
way
being prescriptive or limiting the discretion of the court a quo
to make orders aimed at the speedy resolution of these matters.
The
ultimate goal is to ensure that those of the applicants who are
entitled to identity documents, should be provided with them
as soon
as reasonably possible. It seems that the officials of the Department
will require identity numbers. No good reason occurs
to me why the
applicants’ attorney should not obtain this information, if it
is available: according to a bill of costs annexed
to the application
for leave to appeal made to this court, he has been able to make
telephonic contact with each of the applicants
in the past. If an
identity number has not been assigned to an applicant, it seems from
what we were told from the bar that an
application for late
registration of birth will have to be completed. The officials could
then reasonably be expected to go to
the villages where the
applicants aver they made their applications, after notice has been
given to the applicants via their attorney
or the local chief that
their attendance will be required for this purpose. If some
applicants have died or cannot be traced, their
applications could be
dismissed. If the applications cannot be traced, the court a quo
could investigate the reason and the applicants
may have to start
from scratch ─ in which case the court could lay down a
timetable for the processing of new applications.
And if either party
encounters any difficulty, that party would be free to approach the
court on notice to the other party for
directions. I here have in
mind the procedure prescribed by Uniform rule of court 6(11):
‘
Notwithstanding
the aforegoing sub-rules, interlocutory and other applications
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require and set down at a time
assigned by the Registrar or as directed
by a judge.’
It perhaps requires emphasis that ‘notice’
in the rule does not mean a notice of motion:
Yorkshire
Insurance Co Ltd v Reuben
1967 (2) SA 263
(E)
at 265F-266A; and as the ordinary rules fixing time periods for the
filing of affidavits are not applicable, any dispute or
difficulty
should be capable of speedy resolution.
[20] That brings me to the question of costs. So far as
the costs in the court a quo are concerned, I agree with the
Minister’s
counsel that the appropriate order would be to
reserve the costs for the court a quo to exercise its discretion once
these proceedings
have run their course. So far as the costs of
appeal are concerned, I am unable to agree with counsel for the
Minister that his
client has been substantially successful on appeal.
It is true that the order directing that identity documents be
issued, has
been set aside ─ but it has been replaced with an
order requiring the applications to be considered, and putting the
Department
on terms to do so. Nor did the applicants seek in this
court to justify the order made by the court a quo ─ as I have
said,
they did not appear and abide the decision of this court ─
but on the other hand, they asked for that order to be made and
they
did oppose the application for leave to appeal brought in the court a
quo, and those costs are part of the costs of appeal.
In the
circumstances, I consider that justice would be served if no order
were made in respect of the costs of appeal.
[21] The following order is made:
1 The appeal succeeds, to the extent set out in
paragraph 2.
2 The order made by the court a quo is set aside and the
following order substituted in each application:
‘
(a) The Department of Home
Affairs is ordered to consider the applicant’s application for
the issue of an identity document
and file an affidavit with this
court (with a copy to the applicant’s attorney) on or before 29
June 2012, or within such
further period as may be agreed by the
parties or allowed by this court on good cause shown, stating:
(i) that an identity document has been issued to the
applicant; or
(ii) that the applicant’s application for an
identity document has been refused, and if so, the reasons for the
refusal; or
(iii) that if it has not been possible to process the
applicant’s application, the reasons therefor and if
information is
required for this purpose, what attempts have been
made to obtain such information.
(b) Either party may on notice apply to this court for
further or alternative directions for the purpose of bringing the
application
to finality.
(c) The costs to date are reserved.’
3 The appeals against the interlocutory orders made by
the court a quo are dismissed.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
For Appellant: G Bofilatos SC
Instructed by:
Ngoepe Attorneys, Thohoyandou
The State Attorney, Bloemfontein
1
See
eg
Vumazonke v MEC for Social
Development, Eastern Cape and three similar cases
2005
(6) SA 229
(SE) and cases referred to therein.
2
See
eg
Cele v South African Social Security
Agency and 22 related cases
2009 (5)
SA 105
(D) and
Sibiya v
Director-General: Home Affairs & others and 55 related cases
2009 (5) SA 145
(KZP).
3
Ndevu
v MEC for Welfare, Eastern Cape & another
unreported
SECLD judgment in case 597/02 quoted in
Vumazonke
above, n 1, paras 4 – 5.
4
Erasmus
Superior Court Practice
at D4-8C to E.
5
Erasmus
op cit at D9-14 and 15.
6
See
eg
Ngxuza & others v Permanent
Secretary, Department of Welfare, Eastern Cape & another
2001 (2) SA 609
(E) at 630C-D. As an example of
how the court controlled the operation of the order, see at 631ff.
7
Contrast
Sibiya
above, n
2 paras 30-34.
8
Sections
2
and
9
of the
Births and Deaths Registration Act.
9
Sections
3 and 8 of the
Identification Act.
10
Sections
7(1) and 8 of the
Identification Act.
11
Sections
3 and 15(1) of the
Identification Act.
>
12
Section
25(1)
of the
Identification Act.
13
‘
6(2
)
A court or tribunal has the power to judicially review an
administrative action if ─
. . .
(
g
)
the action concerned consists of a failure to take a decision;
. . .
(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; . .
.’
14
Contrast
Sibiya
above, n
2 paras 18-29; but compare
Thusi v
Minister of Home Affairs
2011 (2) SA
561
(KZP) para 65.