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[2011] ZAKZDHC 5
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Myeza v Minister of Home Affairs and Others (12727/2009) [2011] ZAKZDHC 5 (6 January 2011)
IN THE KWAZULU-NATAL HIGH COURT
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.12727/2009
In the matter between
SINOTHANDO SIPHESIHLE MYEZA
….....................................
Applicant
and
THE MINISTER OF HOME AFFAIRS
….........................
First
Respondent
THE DIRECTOR GENERAL:
HOME AFFAIRS
…..........................................................
Second
Respondent
and
106 other cases.
J U D G M E N T
Del. 6 January 2011
WALLIS J.
[1] The circumstances in which in September 2010 I came
to hear 252 cases in which the applicants sought to review the
alleged failure
on the part of the Department of Home Affairs to
determine applications allegedly for the issue of identity documents,
whether
alone or in conjunction with applications for the late
registration of the applicant’s birth, are dealt with in the
judgment
handed down in Pietermaritzburg on 23 December 2010 in the
case of
Maxwell Thusi v Minister of Home Affairs and another
.
It is accordingly unnecessary to deal with that in this judgment,
which relates to some of the Durban cases forming part of that
group
of cases. My original intention was to deal with all of the Durban
cases together but in order to expedite matters I have
found it
appropriate to divide the task into two. This judgment accordingly
relates to cases where the applicant has died or the
applicants no
longer intend to proceed, or where I have been informed since hearing
the argument that they have been settled. It
deals with cases where
the applicants’ attorneys are no longer in communication with
their clients and have therefore been
unable to deal with the
information provided by the Department. Lastly it deals with those
cases where the central issue has become
academic because it is
common cause between the parties that the applicant concerned has
received their identity document, leaving
only the question of costs
for determination and those where there is a contention by the
Department that an identity document
has been issued.
[2] In what follows I will refer to cases by the number
allocated to them in the roll of Durban cases. In number 67 the
applicant
died in August 2010, but this was only discovered after the
application had been argued and relief had been sought on his behalf.
Number 52 is not proceeding and 63 is a duplicate on the roll and has
been removed. Matters 79 and 89 are not only duplicated on
this roll
but I am informed that the applicant has already obtained an order
relating to these issues through the offices of another
firm of
attorneys. All five matters are accordingly struck off the roll with
no order for costs. So is number 11 where all issues
including costs
were finally disposed of by an order by Murugasen J made on 6 April
2010.
[3] In 23 cases the final schedule provided by the
applicants’ attorney shows that they have been settled. No
information
is furnished of when and in what circumstances a
settlement was reached. It is not even apparent whether they were
settled prior
to the matters being argued, although that seems
probable. A brief examination of the court files suggests that they
are cases
in which orders have already been taken by consent. Be that
as it may all that is now sought is that the applicants be given
leave
to withdraw the applications. That leave will be granted with
no order for costs. That disposes of matters 3, 6, 7, 8, 9, 12, 13,
14, 16, 17, 18, 19, 20, 21, 22, 23, 54, 55, 56,97, 107, 129 and 155.
[4] In matter 1 the applicant obtained by consent an
order that he be authorised to re-apply for an identity document and
this was
followed, as in some of the Pietermaritzburg cases, by an
application for contempt on the basis that his attorneys had not been
timeously furnished with the name of the official who should be
approached for this purpose. Once the name was furnished enquiries
revealed that the applicant had not re-applied citing financial
concerns. The evidence from the Department shows that his identity
document was issued in May 2008, prior to the commencement of the
review proceedings, but returned to Pretoria, in accordance with
departmental practice, because it had not been collected. Plainly
therefore the application was ill-founded from the outset and
the
earlier order should not have been granted. I can do nothing about
that, save to draw attention to what I said in the previous
judgment
about a general costs order in circumstances where the applicant
incurred no liability for costs, but the contempt application
that is
before me will be dismissed.
[5] Matter 123 is also a contempt application. The
applicant obtained an order authorising her to make a fresh
application for an
identity document on 12 November 2009. She made
such an application on 17 November 2009. Although she had done this,
a contempt
application was brought on 14 January 2010 on the basis
that she had not been furnished with the name of the official whom
she
should approach for this purpose. Her identity document was
issued on 1 April 2010, but had not been collected by the time that
the Department delivered its affidavit. The applicant’s
attorney concedes that it is unable to contact her and it seems
likely that this has been the case since before the contempt
application was launched. That application should not have been
brought
and it will be dismissed. The same is true of number 4,
another contempt application, where the applicant’s identity
document
was issued in October 2009 a month after the commencement of
the review and prior to the application for contempt.
[6] Cases 2 and 5 also involve contempt applications. In
each case the receipt shows that an LRB application had been made but
the
review was brought on the footing that this was an accompaniment
to an application for an identity document. A consent order was
taken
for a re-application to be made for a duplicate identity document.
This was followed by a contempt application on the basis
that there
had been a failure to identify an official to deal with the fresh
application. As this order was in any event inappropriate
so is the
contempt application and it will be dismissed. In each instance the
applicant has apparently been issued with an identity
document.
[7]
Cases such as three of the contempt applications where relief had
been obtained prior to the application being launched, that
of the
applicant who had died and those where I am now told that the case
has settled, together with those where I am informed
in the final
schedule that the attorneys are unable to contact their client, give
the disquieting impression that some at least
of this litigation has
assumed a life of its own unconnected to the litigant on whose behalf
and in whose name it was commenced.
Needless to say to the extent
that this is the position it is wholly undesirable. The right to
review administrative action is
one that is intensely personal to the
litigant and it is of fundamental importance that the attorneys
representing clients in this
type of litigation should be in
communication with their clients at every stage of the proceedings.
[8] There are 14 cases
1
where the attorneys say that they have been unable to
contact their client in the course of preparing the final schedule
delivered
to me towards the end of November 2010. In many of those
cases the Department have simply said that the applicant must
re-apply
presumably because it has no trace of the application. In
others they claim to have contacted the applicant either to advise
them
to re-apply or to obtain further information for verification
purposes. The attorneys have not furnished any response to this
because
of communication difficulties although they say in some cases
that they had told their clients about the attempts to resolve issues
on a general basis. It may be that as time has passed since September
2010, when the Department’s affidavit was sworn, some
at least
of these applicants have re-applied and may even have obtained
identity documents. It would I think be unfair to assume
that the
applicants have lost interest in the litigation or are seeking to
address their problems in a different way. On the other
hand it is by
no means clear that when the cases were argued before me the
attorneys were in contact with their clients and had
instructions to
proceed and seek the relief that was sought on their behalf.
Accordingly I propose to strike the matters from the
roll, with no
order for costs. If any applicant wishes to reinstate their
application they may only do so if affidavits by the
applicant and a
representative of the firm of attorneys are filed together with the
notice of reinstatement explaining the cause
of the communication
breakdown that has occurred since these cases were argued. The
affidavits must also set out when and in what
manner the relevant
applicant was informed that their case was enrolled for hearing on
15 September and when and in what manner
the applicant was
advised of and approved the terms of the amended relief to be sought
on his or her behalf as set out in the heads
of argument handed in on
15 September.
[9] That leaves 51 cases where it is agreed
that the applicants have received their identity documents. In those
cases that means
that only the question of costs is still
outstanding. I dealt with the principles that should be applied in
relation to costs in
paragraphs 61 to 65 and 112 to 125 of the
Thusi
judgment and it remains only to apply those principles
to these cases. Where an order of costs falls to be made it will be
made
in the same terms and on the same basis as in that case.
[10] An extraordinarily large number of these cases
either suffer from fatal defects, or were launched with undue haste
or without
making enquiries that patently should have been made
before commencing legal proceedings. This demonstrates at the least a
lack
of consideration of the facts of each client’s case and a
failure on the part of the attorneys to apply their minds to the
different factual situations confronting their client. Over and over
again the attorneys wrote letters and drafted affidavits for
the
applicants saying that they had applied for identity documents when
the receipts in their possession either made it clear that
this was
not the case or at least indicated to anyone having a knowledge of
the Department’s procedures and the terms of
the regulations
that this was improbable. Regrettably the impression one is left with
is that the attorneys were more concerned
with commencing proceedings
and establishing a basis for claiming an order for costs that with
resolving the problems facing their
clients. That impression is
compounded by the fact that it is clear in many instances that the
level of communication between them
and their clients was limited.
[11] The general problems with these applications emerge
from a consideration of the applications in which identity documents
have
ultimately been issued to the applicants. The following cases
are all matters in which the applications for judicial review should
be dismissed:
In matter 10 the applicant obtained an identity
document pursuant to an application brought in June 2010. That
application was
dealt with expeditiously as the identity document
was issued in October 2010. The previous application on which the
review was
based had been made in April 2007 and there is an
unexplained application by the same applicant through another firm
of attorneys.
An extension of time is needed and it is not in my
view in the interests of justice to grant it.
In matter 24 the review application was brought on the
basis of an application for an identity document made in September
2008.
However an entirely fresh application had been made on 26
November 2009. Nonetheless review proceedings were commenced in
January
2010 on the basis of the earlier application, although the
receipt for the later application was annexed to the founding
affidavit.
To compound matters it was said in the founding affidavit
that the 2010 application had been made prior to the 2008
application.
Manifestly the attorney disregarded the later
application. An identity document was issued in April 2010 pursuant
to that application.
In matter 27 the review was based on an application
made in 2007. A fresh LRB application had been made on 5 August
2009
at the instance of a helpful official at the Department, but
this was explained away on the basis that the applicant intended to
pursue the earlier application as she did not want her ‘application
to be held up for a much longer period of time following
this
application in August 2009.’ Fortunately for her the
Department was unaware of this intention, which her attorneys
should
have explained was patently misplaced, and her fresh application was
smoothly processed with her birth being registered
on 2 December
2009 and thereafter an identity document being issued, pursuant to
an application therefore, on 1 April 2010.
The application should
not have been made and must be dismissed.
In matter 30 an application was brought on 28 January
2009 for a duplicate identity document to replace one that had been
stolen.
The receipt says that it was an LRB application together
with an application for the re-issue of an identity document. The
letter
of demand ignored this and no attempt was made to clarify
matters. The review application was launched on 14 December 2009 and
the applicant’s identity document was issued on 13 January
2010. The case is a marginal one but I am not satisfied on a
balance
of probabilities that commencing proceedings was justified. The
entitlement to bring review proceedings depends not simply
upon
delay in dealing with the application but with unreasonable delay
and it is necessary in order to satisfy the court that
the
institution of proceedings was justified that the delay had assumed
such proportions that it was no longer reasonable to
expect the
applicant to exercise patience and wait. That is of course a
question the answer to which is entirely fact-bound.
In matter 31 the application was brought
on the basis of a 2005 receipt although a further application was
brought on 30 August
2006 and another one in 2008. The Department
replied to the letter of demand but its response was ignored and
review proceedings
were launched two days later. As those were based
on the 2005 application they were defective because that had been
supplanted
by the later applications. In any event the interests of
justice do not require that the time for commencing review
proceedings
in relation to the 2005 application should be extended.
2
In matter 33 an LRB application was made on 14 April
2009. That was granted and the applicant must thereafter have
applied for
and obtained an identity document in the middle of 2010.
The review proceedings were commenced in January 2010 and it is
unclear
on the basis of an application for both late registration of
birth and an identity document. That was incorrect and it is not
apparent whether the applicant’s birth had been registered
before the review proceedings were commenced. It is not possible
therefore to hold that the institution of proceedings was justified.
In matter 34 both the review and the letter of demand
were based upon an application made on 22 October 2008. However a
fresh
application had been made on 22 May 2009. The letter was
written only two months later on 23 July 2009 and the proceedings
were
commenced on 27 August 2009. The proceedings were based on the
incorrect application and were premature in relation to the current
application as there had not been an unreasonable delay in dealing
with it.
In matter 36 the application was made on 8 January
2009, the letter of demand was addressed on 25 June 2009 and the
review commenced
on 30 July 2009. The final schedule shows that
there had been earlier proceedings brought by the same applicant
through two other
firms of attorneys based on an application to the
Department made on 21 December 2007. This is not mentioned in either
the letter
or the founding affidavit. In the absence of an
explanation I am not satisfied that there was unreasonable delay
before the proceedings
were commenced.
Matter 38 involve an LRB application made on 20 March
2008, where the receipt was marked as indicating that it might take
6 to
8 months to process An identity number was issued but the
letter was written and the review commenced on the basis that an
identity
book for which no application had been made was required.
No check was made before writing a letter or commencing legal
proceedings
whether an identity number had been issued to the
applicant. An identity document was issued in April 2010. The
failure to ascertain
the true facts renders the review application
defective.
Matter 42 illustrates the rush to commence proceedings
already mentioned. The application to the Department for a
replacement
identity document was made on 12 September 2009 and
was followed by a letter of demand on 17 December 2009.
Although
this attracted a response on 20 January 2010 saying
that the matter was being investigated that had no effect and review
proceedings were commenced on 27 January 2010. Clearly there
had not been an unreasonable delay by then. Also the need for
an
investigation was apparent, as a leading chain of department stores
had told the applicant that his identity number had been
duplicated.
The applicant’s identity document was issued on 25 March
2010. There had not been an unreasonable delay
in dealing with the
application and so review proceedings were not justified.
Case number 44 illustrates the deficiencies in the
approach by the attorneys. The receipt clearly referred to forms
DHA-24 and
DHA 288, which a practitioner in this field should
be aware are the forms for an LRB application. Nonetheless it was
asserted
in the letter of demand and the founding affidavit that an
application for the issue of an identity book had been made. That
shows a disregard for the facts that is unacceptable. It also meant
that when the Department was confronted with a letter of demand
relating to an identity document any attempt to investigate was
domed to failure and was a waste of time. It is unclear when
the
applicant’s birth was registered but these deficiencies make
it inappropriate to do anything other than to dismiss
the
application.
The applicant in matter 50 made an LRB application on
12 June 2008 according to the receipt. His birth had in fact been
registered
but his birth certificate had been destroyed in a fire.
On 8 July 2009 a demand was made for the issue of an identity
document
even though no application had been made for that. The
response to this demand was that an LRB application was necessary.
Instead
of pointing out that this had been made the response
asserted a claim to an identity document. Review proceedings in
relation
to an identity document commenced on 13 August 2009 and the
LRB application was approved on 24 August 2009. An identity document
was issued on 14 December 2009, presumably as a result of a separate
application. The application was clearly misconceived.
In number 60 the applicant had been issued with an
identity document in February 2009 but lost it shortly afterwards.
He applied
for a replacement on 26 May 2009. A letter of demand was
written on 23 October 2009 and review proceedings commenced on
2 December 2009. In the meantime and apparently while
litigation was underway he was interviewed and fresh fingerprints
were taken as the question of a duplicate identity document was
investigated. There is no attempt to deal with this. I am not
satisfied that there had been an unreasonable delay prior to the
commencement of proceedings.
Number 62 is a case where the application revealed that
there were two people with the same identity number. That involves a
more
protracted process because both people must be contacted as the
duplication may involve fraud, the one identity number must be
deleted and a fresh identity number issued. The real problem appears
to be that the Department did not keep the applicant properly
informed of the process rather than that there was unreasonable
delay in processing the application. The application had been
made
on 17 March 2009 and the proceedings were commenced on 2 December
2009. The applicant’s new identity document
was issued with a
new identity number on 22 January 2010 and collected on
16 February 2010. Again I am not satisfied
that there was an
unreasonable delay justifying the commencement of proceedings.
Matter 65 relates to an application for a replacement
identity document made in 2006. The department say that the identity
document
was issued but not collected and returned to Pretoria and
destroyed. In view of the lapse of time and in the face of that
allegation
by the Department it is not appropriate to grant the
extension of time that is required.
Matter 69 was clearly according to the
receipt an LRB application. This was disregarded in the letter of
demand sent on 31 July
2009 9 days after the registration of
the applicant’s birth and prior to an application being made
for an identity document.
The application was misconceived. It does
however provide an insight into the mystery referred to in
paragraphs 26 and 118 of
the judgment in
Thusi
regarding the involvement of Ms Oodit in a
number of these cases. The reason is that in this matter the State
Attorney queried
the authority of Goodway & Buck to represent
the applicant. The response was in the form of two powers of
attorney. The first
was by the applicant given to Ms Oodit, with
powers of substitution. The second was given by Ms Oodit in favour
of Goodway &
Buck.
3
It seems probable from this that the explanation is
that Ms Oodit is referring clients to Goodway & Buck on some
basis. I
am surprised that this could not be explained to me as Ms
Chetty was present in court throughout the argument and she was
patently
aware of the arrangement as the powers of attorney were
filed under cover of a notice signed by her.
4
It is not mentioned in either of the two memoranda on
costs, although it would have been appropriate to do so as one
infers that
Ms Oodit is not acting gratuitously in giving advice in
these matters.
The applicant in case 84 had made an LRB application in
2003 and the letter of demand and the founding affidavit were based
on
this, which raised issues of condonation. However, without any
indication that it might affect the position he attached to his
affidavit a receipt for a fresh LRB application made on 11 June
2009. The letter of demand dated 9 July did not mention
this
and the review commenced on 28 August. Plainly that was unwarranted.
His birth was registered and he made an application
for an identity
document in 2010, which was successful.
An LRB application was made in case 88 on 1 April
2009. The applicant was required to report for an interview and the
attorneys
say that they were contacted by the Department to this end
but have received no further communication. However the applicant
must have gone for the interview because his birth was registered
and he then applied for and obtained an identity document. I
am not
satisfied in those circumstances that commencing legal proceedings
was justified.
The applicant in matter 90 was told on 15 January 2010
that there was a potential problem with his application in that his
identity
number appeared to be shared with another person. This
information was included in the affidavit drafted and sworn that day
without
any further investigation being undertaken. Five days later
the problem had been resolved and he was issued with a new identity
document with a different identity number. Manifestly the process of
addressing his application was underway at the time proceeding
shad
been commenced and if allowance is made for printing the identity
document and sending it to Durban to be collected it is
probable
that it had already been resolved. Clearly the review application
was premature.
The applicant in matter 96 discovered that someone else
had an identity document with the same details as his. It is
probable
that the other identity document was fraudulent, as it had
been issued only a couple of months prior to his and with the same
details but a different photograph. He applied for a duplicate and
surrendered the identity document in his possession. The letter
of
demand quite incorrectly said that he had lost his original identity
document. The review was launched in August 2009. A new
identity
document was issued the following month but for some unexplained
reason was not collected until June 2010. I am not
satisfied that in
a case involving a potential fraud there was an unreasonable delay
in dealing with the application.
The review in cases 98 and 105 were defective from the
outset as attached to the founding affidavit in each was a printout
from
the Department’s website showing that the applicant’s
identity document was being printed in Pretoria. In the face
of that
the proceedings should not have been commenced.
The same is true of the review in case number 101. This
was an LRB application that had been approved on 28 October 2009.
The
review was only commenced on 17 December after the only possible
relief had already been obtained.
Matter 102 is a case involving a duplicate identity
number. The application was made on 8 April 2009 and the review
was launched
on 17 December 2009. Ms Oodit was the client’s
attorney although the founding affidavit expressly stated that ‘I
have neither instructed nor consulted with any other attorney
regarding my application for an Identity Document and that Goodway
&
Buck are the only attorneys that bear a valid mandate for this
matter’. Bearing in mind that there was a duplicate
identity
number to be dealt with I am not satisfied that there was an
unreasonable delay in processing the application and the
falsehood
in the founding affidavit is a further reason not to make an order
for costs.
Case number 108 involves an application on 14 August
2009. It was almost certainly an LRB application not one for an
identity
document although the letter on 19 November 2009
claimed that it was one for an identity document and ‘in all
probability’
also one for late registration of the applicant’s
birth. The applicant’s birth was registered on 20 January
2010 and review proceedings were commenced in February. Clearly that
was misconceived.
In matter 110 the applicant made an LRB application on
6 May 2008, which was approved. The review application was brought
in December
2009 in respect of both an LRB application and one for
an identity document. The ultimate issue of an identity document
appears
to have been in terms of a separate application details of
which are not available. It is not clear that there was any
outstanding
application the decision on which could be subject to
review when legal proceedings were commenced in December 2009. The
application
must therefore be dismissed.
The applicant in case number 112 had her identity
document stolen in 2008. She only applied for a replacement on
31 July
2009. The letter of demand was written three and a half
months later and proceedings were commenced in December 2009. It
cannot
be said that there was an unreasonable delay prior to that
date.
On 15 June 2009 the applicant in case 114 made an LRB
application. That is what the receipt says. The demand letter
disregarded
this. The application was approved on 31 October 2010
and thereafter an application for an identity document was made
and
an identity document issued on 26 February 2010. The review
application was fatally defective relating as it did to
an
application that had not even been made.
The applicant in case number 115 applied for a change
in surname as well as a new identity document to reflect that
change. His
application was made on 12 June 2009 and proceedings
were commenced in December 2009. There is no information in the
founding
affidavit as to the reasons for wanting to change his
surname or as to the potential difficulties in doing so. It is
presumably
a more complex process than a straightforward application
for an identity document. In those circumstances I am not satisfied
that there had been an unreasonable delay prior to the commencement
of proceedings.
Matter 117 was an LRB application made on 15 June
2009. The letter of demand was dated 27 October and the
proceedings
were launched on 17 December 2009. There had not
been an unreasonable delay and the applicant received his identity
document
on 3 February 2010. As the receipt shows that he had only
applied for the late registration of his birth it seems that he must
have applied for an identity document in the interim once his birth
was registered. Manifestly he was not in touch with his attorneys,
nor they with him, because in September 2010 they sought an order on
his behalf requiring him to make a fresh LRB application
and
thereafter a fresh application for an identity document.
Case 125 is similar in that only an LRB application was
made on 22 April 2009 according to the receipt. The identity
document
issued in December 2009 must have been issued pursuant to a
separate application. All this was disregarded in both the letter of
demand and the founding affidavit. The review application is
accordingly defective.
In case number 133 both the letter of demand and the
founding affidavit are based upon applications made in 2002 and 2005
respectively.
However the papers reveal that there was another
application in 2008. On that ground alone it is not in the interests
of justice
to grant the application for condonation.
In one of the most egregious examples of a disregard of
the facts the application in case number 138 was to review a failure
to
take a decision on an application for an identity document that
had not been made. An LRB application was made as stated clearly
on
the receipt and had been granted as appeared from the birth
certificate annexed to the founding affidavit. Nonetheless the
founding affidavit claimed that an application for an identity
document had been made. It is difficult to see how anyone paying
any
attention to the documents could have erred in this way.
Case number 139 is a condonation application where the
application for both a late registration of birth and an identity
document
had been made in 2007. Proceedings were commenced in
September 2009 and an identity document was issued in December 2009.
The
only purpose in granting condonation would be to award costs. In
my view the interests of justice do not require that extensions
of
time under s 9 of PAJA be granted for that purpose. The purpose
of affording the court the power to grant an extension
of the 180
period for commencing review proceedings is to ensure that the
interests of justice are served in relation to the
applicant and as
the applicant has obtained what he requires there is no interest of
justice that would be served by granting
the extension sought.
Number 142 is an LRB application that was approved on
19 June 2009 prior to the commencement of review proceedings.
The letter
of demand said that the attorneys were not in possession
of an identity number, but their client was and proof of that is
attached
to the founding affidavit. The review related to an
application that had not been made and must be dismissed.
Matter 150 was fatally defective from the outset as the
founding affidavit annexed an extract from the Department’s
website
stating that the identity document was being printed in
Pretoria. Whether or not that was accurate that is a matter that
should
have been checked before commencing proceedings and only if
found to be incorrect should proceedings have been brought.
In case number 152 what appears to have been an LRB
application was made on 10 March 2009 and approved on 9 December
2009.
The review application was brought on 18 January 2010. It
was therefore misconceived from the outset. Insofar as it was
founded on a failure to deal with an application for an identity
document it is not established on the papers on a balance of
probabilities that such an application was made and it appears
unlikely that it was as the identity document was issued as a result
of an application made after the applicant’s birth had been
registered.
In case 153 the final schedule reflects that the
applicant had made two other applications through other attorneys in
one of which
at least an order for costs had been made. The reason
for this is not canvassed in the founding affidavit although it
manifestly
should have been. There is a material non-disclosure in
the application papers and on this ground the application must fail.
In number 159 the receipt for an LRB application is
dated 6 November 2008. That application had been approved and
the applicant
contacted to apply for an identity document which he
did on 6 May 2010, four months after commencing proceedings to
review
the failure to decide his (non-existent) application for an
identity document. The review application is not just defective. It
was wholly unjustified.
In case 163 the application was made on 2 May
2009, the letter was written on 15 October 2009 and the review
commenced on
7 December 2009. It was a case where there was
apparently a duplication of identity numbers that was resolved and
an identity
document issued on 14 May 2010. In my view there was no
unreasonable delay. The problem is more likely one of lack of
communication
as to what was happening, an ongoing thread in these
cases.
Number 165 is another application for condonation. The
application was made to the Department on 7 September 2005
although
the letter of demand says 2008 and there is an unexplained
departmental stamp on the receipt reflecting the date as 19 February
2009. Bearing all this in mind as well as the fact that the purpose
of an extension is purely to obtain a costs order this is
not a case
where condonation should be granted.
Case number 169 is quite extraordinary in that the
applicant had made a fresh application to the Department the day
before the
commencement of review proceedings. There is no attempt
to give any consideration to the effect of his doing so. Whatever
his
motivation it is clear that to commence proceedings thereafter
on the basis of an old application was not justifiable. His previous
application had been made in January 2009 and involved an amendment
to the births register. That would have required an interview
and
may explain the earlier delay. Be that as it may the application
should not have been commenced when it was.
Case number 171 is unusual in that it relates to a
former citizen of the Democratic Republic of Congo, who has become
naturalised.
He received his naturalisation certificate on
8 September 2009 and applied for a replacement identity
document showing his
new citizenship on the same day. The letter of
demand was dated 14 January 2010 and the review commenced on
19 February
2010. His identity document was issued on 1 June
2010. Again this is a marginal case but in my view there had not
been unreasonable
delay prior to the commencement of the review.
[12] That leaves cases 43, 46, 80, 86, 95, 126, 127,
130, 131, 143, 166 and 170 where the commencement of proceedings was
justified.
In each of these cases, whether involving an LRB
application or one for an identity document, the time that elapsed
between the
application being made and the commencement of the review
proceedings was excessive and the Department has provided no
explanation
for the delay. In several it had lost track of the
application although the possibility cannot be excluded that the
identity document
that has now been issued was issued as a result of
a fresh application. In any event on the factual material at present
before
the court the commencement of proceedings appears justified
and the respondents must bear the costs of this on the same basis as
the favourable costs orders in the Pietermaritzburg cases.
[13] There is one other contempt application where it is
now accepted that an identity document has been issued to the
applicant.
That is case number 154. On 5 October 2009 an order
reviewing the failure to provide the applicant with an identity
document was
granted together with an order that the respondents
register the applicant’s birth and issue him with an identity
document
within 60 days of the grant of that order. This was not done
and on 11 December a contempt application was brought. According to
the Department it only registered the applicant’s birth on 6
May 2010 and her identity document was issued a month later.
That was
a clear breach of the order granted by consent on 5 October
2009. In those circumstances the institution of contempt
proceedings
was justified and the costs attendant upon such an application as
dealt with in the judgment in
Thusi
should be awarded.
[14] In two applications, numbers 74 and 118, the
Department says that the applicants’ identity documents are
ready for collection
and the applicants deny this. The simple way in
which to resolve this is to require the Department to produce the
identity documents
at court and then to consider what costs orders
should be made. Accordingly these applications are adjourned to be
heard by me
on Monday 24 January 2011. The respondents are
directed to have available at court for collection by the applicants
their
identity documents. If they have been handed to the applicants
prior to that then an affidavit must be delivered by the official
who
handed the identity document to the relevant applicant stating when
and where that took place and attaching proof of receipt
by the
applicant. The parties are directed to approach my registrar to
ascertain the arrangements for dealing with these two cases
on that
day.
[15] The last two cases are instances where the
Department says that the applicants have received their identity
documents and the
applicants dispute this. These are cases 124 and
147. In the former the Department said that as a result of the
applicant not collecting
his identity document it had been returned
to Pretoria but according to its website it has now been delivered to
him. In both cases
the delays in processing the applications are
unexplained and in my view unreasonable. An order for costs will
follow on the same
basis as the cases referred to in paragraph [12].
The applicants are given leave to set the applications down on
supplemented papers
for the purpose of obtaining further relief if
they remain in dispute with the Department over the issue of the
receipt by them
of their identity documents.
[16] The costs of arguing these applications they were
fully dealt with in the judgment in
Thusi
and the topic need
not be considered here.
[17] The following orders are accordingly granted:
Matters 11, 52, 67, 79 and 89 are struck off the roll
with no order for costs.
In matters 3, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19,
20, 21, 22, 23, 54, 55, 56, 97, 107, 129 and 155 leave is granted to
withdraw
the applications with no order as to costs.
Matters 49, 73, 76, 77, 85, 94, 109, 111, 145, 149,
173, 176, 177 and 182 are struck off the roll and may only be
reinstated after
affidavits have been delivered by both the
applicant and the applicant’s attorney dealing with the
matters set out in paragraph
8 of this judgment.
In matters 1, 2, 4, 5 and 123 the contempt applications
are dismissed.
In matter 154 the respondents are ordered to pay the
costs of the contempt application brought by the applicant, such
costs to
be in the sum of R1500.00 plus VAT.
In matters 10, 24, 27, 30, 31, 33, 34, 36, 38, 42, 44,
50, 60, 62, 65, 69, 84, 88, 90, 96, 98, 101, 102, 105, 108, 110,
112, 114,
115, 117, 125, 133, 138, 139, 142, 150, 152, 153, 159,
163, 165, 169 and 171 the applications are dismissed.
In matters 43, 46, 80, 86, 95, 124, 126, 127, 130, 131,
143, 147, 166 and 170 the respondents are ordered to pay the
applicant’s
costs of the application, such costs to be in an
amount of R5000.00 plus VAT plus all necessary disbursements in
respect of court
fees, sheriff’s charges and the appearances
of counsel, subject to the fee for each such appearance being
limited to an
amount of R450.00.
Matters 74 and 118 are adjourned for hearing before me
at Durban on Monday 24 January 2011. The respondents are
directed
to have available at court for collection by the applicants
their identity documents. If they have been handed to the applicants
prior to that then an affidavit must be delivered by the official
who handed the identity document to the relevant applicant
stating
when and where that took place and attaching proof of receipt by the
applicant.
DATES OF HEARING 15, 27 and 29 SEPTEMBER 2010
DATE OF JUDGMENT 6 JANUARY 2011
APPLICANTS’ COUNSEL MS D SRIDUTT (heads of
argument prepared by G D Harpur SC and Ms D Sridutt)
APPLICANTS’ ATTORNEYS GOODWAY & BUCK
RESPONDENTS’ ATTORNEY THE STATE ATTORNEY
DEFENDANT’S ATTORNEYS MR R B G CHOUDREE SC and MS
J HENRIQUES
1
Numbers
49, 73, 76, 77, 85, 94, 109, 111,145, 149, 173, 176, 177 and 182.
2
This
is technically what is required when ‘condonation’ is
sought for failing to commence review proceedings within
180 days.
3
In
several other cases I read after dealing with this one, such as
matter 102, the same challenge was raised and it provoked the
same
response. In some at least of these the founding affidavit contained
an express allegation that no attorney other than Goodway
& Buck
had been consulted by the applicant. This was patently false.
4
In
other cases she had witnessed Ms Oodit’s signature on the
power of attorney.