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[2012] ZAECBHC 7
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Totolo v Minister of Home Affairs, Republic of South Africa and Others (481/2009) [2012] ZAECBHC 7 (18 September 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – BHISHO)
CASE
NO: 481/2009
DATE
HEARD: 31/07/2012
DATE
DELIVERED: 18/09/2012
In
the matter between
MAPOTONI
MZWANDILE TOTOLO
APPLICANT
and
THE
MINISTER OF HOME AFFAIRS,
1
ST
RESPONDENT
REPUBLIC
OF SOUTH AFRICA
THE
DIRECTOR GENERAL OF THE
2
ND
RESPONDENT
DEPARTMENT
OF HOME AFFAIRS,
REPUBLIC
OF SOUTH AFRICA
THE
REGIONAL DIRECTOR OF THE
3
RD
RESPONDENT
DEPARTMENT
OF HOME AFFAIRS
JUDGMENT
ROBERSON
J:-
[1]
This is an application in terms of s 6 (2) (g) of the Promotion of
Administration of Justice Act 3 of 2000 (PAJA),
for the review and
setting aside of the respondents’ failure to consider and
decide upon the applicant’s application
for the amendment of
his date of birth as contained in the Population Register, and other
relief. S 6 (3) of PAJA provides
that where the ground of
review is a failure to take a decision as provided in s 6 (2) (g),
and no time period is prescribed
within which a decision must
be taken, proceedings may be instituted on the ground that there has
been unreasonable delay in taking
the decision.
[2]
The applicant alleged in his founding affidavit that he was born on
17 March 1943. In support of that allegation
he annexed a copy
of what he said was his baptismal certificate, which reflected his
date of birth as 17 March 1943. On 17
September 2007 and at the
offices of the third respondent in Mdantsane, he applied for the
amendment of his date of birth, which
he alleged was wrongly
reflected in the Population Register as 17 March 1951. A copy
of his identity document, which was
issued on 20 October 1988,
reflected his date of birth as 17 March 1951. His application
was two fold, because once his date
of birth was amended, he would
have to be issued with a new identity document containing the correct
date of birth. He annexed
a copy of an acknowledgment of
receipt of his application. This document bore the official
stamp of the Department of Home
Affairs, Mdantsane and reflected that
the applicant had paid the required fee. The date on the
official stamp was 17 September
2007. At the time of making his
application, he was told to return in three months to collect his
amended identity document.
He did so in December 2007 and was
told that a decision was still being awaited from the second
respondent, and was further advised
to return once a month to enquire
about progress.
[3]
He returned to the offices of the third respondent once a month after
that but was always informed that a decision
from the second
respondent was awaited. When it was apparent no decision was
forthcoming, he consulted his attorney on 4
June 2009. His
attorney sent letters to the respondents putting them on terms to
make a decision or to furnish reasons if
the application had been
refused. No response was received from the respondents, and the
application was accordingly launched
on 14 July 2009. The
applicant claimed that he is illiterate and that his illiteracy and
the lack of information received
from the third respondent, led to
his not instituting proceedings earlier.
[4]
The application was opposed and the answering affidavit was deposed
to by one Courtenay Champion who stated that
he was the Chief
Administration Clerk at the “Respondent’s Head Office.”
Presumably he meant the office
of the Department of Home Affairs in
Pretoria. He stated that the matter was “excipiable on
the account of its inexplicably
late filing and as such Applicant’s
matter had prescribed”. After referring to a delay of two
years on the part
of the applicant in bringing the application, he
stated as follows:
“
That there is no reasonable
explanation for such a delay, save the self serving notion that the
Applicant’s illiteracy is
to blame for the delay which I
implore the above Honourable Court to treat such with the contempt it
deserves.
The Applicant does not say why he
allowed the matter relating to the correction of the details on his
identity document to remain
for all the years that he was carrying
the document without seeking for its correction.
The Applicant does not explain that
the motive of this sudden galvanization into action to seek that
rectification is not driven
by the intention to access old age
pension wherein the age requirement for adult male applicants is
pegged at the age of 65.”
[5]
After querying the authenticity of the baptismal certificate Champion
went on to suggest that the applicant should
have made a fresh
application for the amendment of his particulars in the Population
Register, supported by further and presumably
more persuasive
documents to confirm his date of birth. Champion specifically
denied that the applicant made an application
at the offices of the
third respondent on 17 September 2007, and that he had submitted
supporting documents and photographs with
his application. He
put the applicant to the proof of his allegations that he had been
issued with a receipt of his application,
that he had paid a fee,
that he had periodically returned to the offices to enquire about
progress, that he had not yet been furnished
with a decision on his
application, and that his attorney had sent letters and received no
response.
[6]
The replying affidavit was deposed to by the applicant’s
attorney. He stated in the affidavit that any
queries which the
respondents had concerning the applicant’s application for an
amendment of his birth particulars should
have been brought to his
attention and did not amount to a defence to the application.
He also pointed out that there were
no supporting affidavits from
officials of the third respondent in Mdantsane and that anything
stated by Champion about what happened
at that office was hearsay.
He challenged the authority of Champion to depose to the affidavit
and also criticised the obstructionist
conduct disclosed by the
affidavit. The rest of the affidavit, which was thirty six
pages long, consisted of legal submissions,
extracts from the
answering affidavit and criticism of the respondents’ conduct
towards the applicant.
[7]
When the matter was argued, the application was opposed on two
grounds: the first was undue delay in bringing
the review
proceedings, and the second was that the applicant was not born in
1943.
Delay
[8]
S 7 (1) of PAJA provides:
“
Procedure for judicial review
(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 –
(a) 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
(b) where no such remedies
exist, on which the person concerned was informed of the
administrative action, became aware of
the action and the reasons for
it or might reasonably have been expected to have become aware of the
action and the reasons.”
In
Sibiya v Director-General: Home Affairs and Others, and 55
Related Cases
2009 (5) SA 145
at paragraph [16] Wallis J (as he
then was) said the following:
“
The conclusion that PAJA is
applicable brings into focus 7(1) of PAJA which provides that any
proceedings for judicial review in
terms of s 6(1) of PAJA must be
instituted without unreasonable delay and not later than 180 days
after the date upon which the
applicant became aware of the
administrative action or might reasonably have been expected to have
become aware of the administrative
action. (I appreciate that s
7(1)(b) deals with the reasons for the administrative action but
where the characteristic of
the administrative action in question is
inertia on the part of the department, that ceases to be relevant.)
The determination
of the date when the applicant became aware or
should reasonably have become aware of the department’s default
in providing
the requested identity document is a matter of some
nicety, as no time is fixed in the Identification Act or the
regulations for
the delivery of the identity document and accordingly
the question in every case is whether a reasonable time has elapsed
from
the time the application was made, so that the applicant can
legitimately claim that the department is in default of its
obligations.
It is only at that stage that the period of 180
days provided in s 7(1) of PAJA can commence to run.”
[9]
There was no evidence to counter the applicant’s averment that
he had been to the offices of the third respondent
once a month after
December 2007, and was told each time that a decision was being
awaited. In those circumstances, and taking
into account the
applicant’s illiteracy, it was reasonable that it would have
taken some time for the applicant to become
aware of the failure to
make a decision on his application. In that case, bearing in
mind the difficulty in ascertaining
when the 180 day period began to
run, I am satisfied that, because each time he visited the offices he
was led to believe that
a decision was still to be made, the 180 day
could have begun to run from the time of his last visit, or at least
within 180 days
prior to the date he instituted these proceedings.
The opposition on the ground of delay therefore cannot succeed.
Dispute
about date of birth
[10]
This ground of opposition has no merit. The application
concerns a failure to make a decision at all, not a failure
to grant
his application for the amendment of his date of birth. The
merits of his application for the amendment of his date
of birth are
irrelevant for the purpose of the present proceedings. Counsel
for the respondents accepted that no decision
had been made.
[11]
The application must therefore succeed.
[12]
Counsel for the applicant submitted that an award of costs on the
attorney and own client scale was appropriate in the
circumstances.
Counsel for the respondents submitted that there was fraudulent
conduct on the part of the applicant because
the baptismal
certificate was suspect, and that he should be penalised in costs
accordingly. Counsel for the respondents
also submitted that
the unnecessary length of the replying affidavit should be taken into
account in deciding on an appropriate
award of costs.
[13]
It is a pity that this application was argued at all. Clearly
the applicant’s application at the third respondent’s
offices only received consideration when these proceedings were
instituted. Only in the answering affidavit was it said that
there is a problem with his baptismal certificate and that he should
submit further and better documents in support of his application.
This is unacceptable conduct on the part of the respondents.
Champion’s answering affidavit was deposed to on 18 March
2010. It did little to answer the applicant’s case and
contained inaccurate and careless denials, or professed lack
of
knowledge, of the applicant’s averments. It also
contained unpleasant remarks, namely that the court should treat
with
contempt the applicant’s explanation for the delay based on his
illiteracy, and that the applicant should have averred
that he was
not fraudulently trying to qualify for a pension. These are
meaningless remarks and do nothing to further the
case of the
respondents. The matter was eventually argued more than two
years after Champion deposed to the answering affidavit
and still no
decision had been made. This lack of action is deplorable.
The matter was still opposed, in the knowledge
that no decision had
been made. This type of conduct in litigation borders on an
abuse of court proceedings. In all
these circumstances I am of
the view that a punitive costs order is warranted, but not to the
extent of the attorney and own client
scale.
[14]
It is impossible for me in these proceedings to decide whether or not
the baptismal certificate is fraudulent.
This is something the
respondents will have to look at after they are ordered to make a
decision. I do agree however that
the replying affidavit is
inordinately long and intend to take this account when making the
costs order.
[15]
In the result the following order is made:
15.1
The respondents’ failure to consider and decide upon the
applicant’s application for an amendment to the
population
register so as to reflect the date of his birth as 17 March 1943 and
the issue of an identity document reflecting the
amendment, is
reviewed and set aside.
15.2
The respondents are directed to consider and decide upon the
applicant’s application for an amendment to the population
register so as to reflect the date of his birth as 17 March 1943 and
the issue of an identity document reflecting the amendment,
and to
inform the applicant’s attorneys of their decision thereon
within 30 days of service of this order upon them:
provided
that
15.2.1 In the event of the
applicant’s application being approved, the respondents
are directed to furnish the
applicant with the identity document
within 60 days of service of this order upon them; and
15.2.2 In the event of the
applicant’s application being refused, the respondents are
further directed to furnish the
applicant’s attorneys with
written reasons for the decision so taken, within 60 days of service
of this order upon them.
15.3 The respondents are to pay
the costs of this application on the attorney and client scale, the
one paying the other to
be absolved: provided that the
applicant is only entitled to one quarter of the costs of the drawing
of the replying affidavit
of attorney Ndzabela.
J
M ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:-
For
the Applicant: Adv J. L. Hobbs, instructed by Sigabi Attorneys,
King Williams Town .
For
the Respondents: ADV A.M. Da Silva, instructed by The State Attorney,
East London.