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[2011] ZAKZDHC 6
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Mkhize v Minister of Home Affairs and Another (1065/2010) [2011] ZAKZDHC 6 (9 February 2011)
IN THE KWAZULU-NATAL HIGH COURT
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.1065/2010
and 72 other cases
In the matter between
NOMSA MKHIZE
…..........................................................................
Applicant
and
THE MINISTER OF HOME AFFAIRS
…...........................
First
Respondent
DIRECTOR-GENERAL: HOME AFFAIRS
…...............
Second
Respondent
J U D G M E N T
Del. 9 February 2011
WALLIS J.
[1] This is the third and last
judgment dealing with the 252 cases in which applicants brought
review proceedings against the Department
of Home Affairs arising out
of their alleged failure to deal with applications for the issue of
identity documents. The background
to the judgments is to be found in
the previous judgments
1
and it is unnecessary to repeat them.
The relevant legal principles appear from the judgment in
Thusi.
This judgment deals with three
categories of cases. The first are those where the Department has
attended to the late registration
of the applicant’s birth but
no identity document has been issued. The second consists of cases
where there are queries in
regard to the application. The third and
largest category is cases where the Department says that it has no
trace of any application
and that the applicant must accordingly
apply afresh. I will deal with each category in turn.
[2] There are five cases
2
where, according to the Department,
the applicant’s birth has been registered pursuant to an LRB
application and the applicant
now needs to make an application for
the issue of an identity document. In each of those cases it is
patently clear from the receipt
put up in support of the application
that it was solely an application for the late registration of the
applicant’s birth.
This is in accordance with the Department’s
policy of dealing with LRB applications separately from applications
for identity
documents. In other words it appears from the receipts
themselves that the applicants did not make applications for the
issue of
identity documents.
[3] Insofar as the applications are for the review of an
alleged failure by the second respondent to take a decision on the
applicant’s
application for the late registration of birth the
answer to the application is that such a decision has been made.
Insofar as
the application seeks the review of a failure on the part
of the second respondent to take a decision on an application for an
identity document no such application has been made. For those
reasons each of these five applications must be dismissed. The
attorneys
who prepared the application papers should have realised
that their clients had not in fact made applications for the issue of
an identity document. Had they done so steps could have been taken to
ascertain whether the applicants’ births had been registered
and once that was confirmed they could have been advised to make
applications for identity documents without resorting to legal
proceedings.
[4] In two other cases the failure to distinguish
between an LRB application and an application for an identity
document occasioned
similar problems. In case No.134 an LRB
application was made on 12 June 2009. The applicant’s
mother was contacted by
the Department because there was a question
about his name. That was clarified and he was issued with a birth
certificate and applied
for an identity document on 6 July 2010.
According to the Department’s website that has been handed to
him. Had it been appreciated
that this was only an LRB application
and not an application for an identity document the review
proceedings would not have been
launched in January 2010. The
application must be dismissed.
[5] Similarly in case No.146 the failure to appreciate
that no application for an identity document had been made was
probably the
cause of an apparently lengthy delay. The review
commenced on the basis that an LRB application and an application for
an identity
document had been made on 21 June 2008. That was
incorrect and pursuant to the LRB application the applicant’s
birth had
been registered on 6 July 2008, two weeks after the
application. The problem was the absence of an application for an
identity
document. That application was only made in September 2010.
Again the application must be dismissed.
[6] Matter No.59 is a case where an order was granted on
5 October 2009 and contempt proceedings were brought on 10 December
2009.
By that stage the applicant’s birth had been registered
on 16 October 2009. As it is plain from the receipt that the
application
was an LRB application and not one for the issue of an
identity document there had accordingly been compliance with the
order insofar
as such compliance was possible. The contempt
application must be dismissed.
[7] In matter No.91 the problem encountered with the
applicant’s LRB application was that he already had an identity
number
and accordingly his birth had been registered. On 1 September
2010 he made a fresh application thereby abandoning the previous one.
The review application must therefore be dismissed.
[8] In matter No.99 the applicant provided incorrect
details in support of her LRB application. When she contacted the
Department
they told her she would have to make a fresh application
but she has not done so apparently because of some financial
difficulties.
Again the review application is misconceived and must
be dismissed.
[9] Matter No.121 is similar. The applicant made an LRB
application, provided incorrect details, was interviewed and told to
make
a fresh application. She has not done so allegedly because of
financial difficulties. That is an odd explanation as she was able
to
provide instructions to enable the review application to be launched
on 17 December 2009. Be that as it may the review
application
must be dismissed.
[10] In matter No.156 the applicant has made two
different applications, the most recent of which is clearly an LRB
application.
There is a problem with the applications as they are
made in different names. Moreover the information given to the
Department
about the applicant’s mother’s name is now
disputed by the applicant. There is nothing to indicate that the
Department
has delayed unduly in trying to resolve these issues. In
those circumstances the review application must fail.
[11] In matter No.161 the applicant made an application
and attended an interview. According to the Department his
application was
then rejected and he needed to be interviewed again.
According to the final schedule such an interview was conducted in
June 2010.
Again there is no basis for thinking that the Department
has been unduly tardy in dealing with the application. The review
must
therefore be dismissed.
[12] In matter No.162 the application is one for the
issue of an identity document. The applicant’s birth has been
registered
and a birth certificate is annexed to the application.
However there is a difference between the name on the birth
certificate
and name on the receipt for the application for an
identity document. In addition it appears that according to the
Department’s
records the identity number appearing on the birth
certificate is invalid. That is confirmed by a check on the
Department’s
website. Clearly these issues needed to be
resolved and there is no evidence to suggest that the Department has
delayed unduly
in trying to resolve them. Accordingly the review
application must be dismissed.
[13] In matter No.35 an application was made on 3 March
2009 for the reissue of an identity document. The letter of demand
was sent
on 22 July 2009 and the review was commenced on 27
August 2009. According to the founding affidavit the applicant was
advised on 26 August 2009, before the commencement of review
proceedings, that there was a problem and that he should make
a fresh
application. Somewhat cryptically he says:
‘
I have made various applications from the
request of the various officials that have attended on me and I think
that the Department
is now simply wasting my time.’
He accordingly wished the Department to deal with his
application as a matter of urgency. I do not think that the review
should
have been launched without ascertaining what the problem was
and seeking to resolve it. In those circumstances I am unable to hold
that unreasonable time had elapsed from the date of the application
for an identity document until the commencement of the review
proceedings. They must accordingly be dismissed.
[14] Matter No.40 typifies the approach adopted in these
cases. The application appears to be one for the reissue of an
identity
document as a fee was paid. On 8 December 2009 a letter of
demand was written. On 20 January 2010 the Department responded
that it was undertaking investigations and would revert to the
attorneys. Undeterred by that response they commenced review
proceedings
the following day, 21 January 2010. Although in the
final schedule they claim to have been in communication with their
client
they were apparently not informed that she lodged a fresh
application on 4 March 2010. As the review is premised on the earlier
application, the lodging of a fresh application amounts to an
abandonment of the earlier application. The review must accordingly
be dismissed.
[15] In case No.62 the applicant made an application on
9 May 2008 and the receipt shows that it was an application for an
identity
document although an LRB application was necessary. The
letter of demand sent on 23 September 2009 evoked no response and the
review
was launched on 5 November 2009. In June 2010 the applicant
attended an interview and was thereafter given a birth certificate
indicating that her birth had been registered. She then made a fresh
application for an identity document. There is accordingly
no need
for any substantive relief to be granted and the only remaining
question is that of costs. In my view the delay was unreasonable
and
an order for costs should be made.
[16] Matter No.48 involves an application for the
reissue of an identity document made on 6 July 2006. The applicant
properly complains
that he has returned on a number of occasions to
the office where he made the application and had simply been told
that his identity
document is not yet available. According to the
Department there is a need for him to attend an interview. There is
no explanation
for the fact that this has not been adequately
communicated to him or for the fact that such an interview has not
been conducted
on one of his many visits to the Department’s
offices. The applicant is entitled to relief in accordance with the
order formulated
at the end of this judgment.
[17] The applicant in matter No.72 applied for the issue
of an identity document on 27 March 2009. She was told at the time
that
her identity number was shared with someone else. In other words
there was a duplication of identity numbers that needed to be
clarified. She returned to the service point on two occasions in May
and July 2009 to no avail. A letter of demand was written on
29
October 2009, which did not refer to the possible duplication. On 7
December 2009, the morning that she deposed to her founding
affidavit, the applicant went to the service point and was advised by
an official that because her identity number was shared with
someone
else further documents were required from her. Her response in the
founding affidavit was to say:
‘
I cannot understand why the respondents
require further documents as I have complied with all their
requirements and believe that
to request for further documents will
only delay processing my application even further.’
That type of obdurate attitude is unhelpful and her
attorneys should have been advised her of that not drafted an
affidavit containing
this statement. The review application falls to
be dismissed.
[18] In matter No.82 the applicant has twice tried to
have her date of birth as set out in her current identity document
corrected.
The most recent application was 8 March 2007.
Notwithstanding a number of visits to both offices to which
applications have been
made the applicant has received no adequate
response. All that the Department says is that in May 2010 they
contacted the
applicant’s attorneys as she needed to be
interviewed. In my view this is a clear case of undue delay and the
applicant is
entitled to relief in accordance with the order at the
end of this judgment.
[19] The next case, matter No.103 is similar in that the
applicant was seeking both a replacement identity document and an
amendment
to her date of birth. That much is apparent from the two
cash register receipts attached to the receipt for her application.
The
application was made on 6 March 2009 and a letter of demand
was sent on 11 November 2009. On 13 November 2009 the Department
addressed a letter to the applicant asking her to furnish certain
additional documents, which she did at some unspecified time
in
January 2010. The review application was launched on 9 February 2010.
In my view that did not give the Department adequate time
to deal
with the further documents and complete its investigations. In that
regard I bear in mind that the application was being
processed
through the Mbazwana office of the Department in the Hluhluwe area,
although the applicant claims to be permanently resident
in Durban. I
am not satisfied that an unreasonable time has elapsed for dealing
with the application and the review application
falls to be
dismissed.
[20] Matter No.137 is an LRB application and the receipt
is marked as such. The application was made on 28 November 2008.
According
to the Department there had been a previous application by
the applicant and an identity document had been issued, but it was
not
collected and after a period destroyed. There is a discrepancy
between the date of birth in the present application and that in
the
previous application. The applicant mentions a previous application
in 2003 but says only that he is not in possession of a
receipt for
that application. He also says that his original birth certificate
was lost at the time of his mother’s death.
Although it is
clear that this was an LRB application both the letter of demand and
the review proceed on the basis that it was
an application for the
issue of an identity document. The Department say that the applicant
must be interviewed in order to resolve
the discrepancy in regard to
his date of birth. This is not dealt with by the applicant. In those
circumstances I am not satisfied,
notwithstanding the time that has
elapsed, that there has been unreasonable delay on the part of the
Department. Accordingly the
application falls to be dismissed.
[21] In matter No.167 the application was made in 2005.
Although the applicant did not have his birth certificate it was
apparently
possible for the official concerned to retrieve his
identity number from the Department’s computer system. It
appears that
the applicant has been required to sign new documents
and provide additional photographs and did so again as recently as
September
2010. There has manifestly been an undue delay in his case
and he is entitled to the relief embodied in the order at the end of
this judgment.
[22] The next case, No.168, involves an application for
the reissue of an identity document in somewhat obscure
circumstances. The
applicant says that in 1987 when he went to open a
bank account he was told that there was already someone with his
identity number
who had opened such an account. He says he complained
about this to the Greenwood Park police station and was advised to
apply
for a corrected identity document. No explanation is given as
to what transpired between 1987 and 10 February 2009 when he made
the
application that is the subject of these review proceedings. The
applicant says that he has returned to the Department’s
offices
in Isipingo on nine occasions to make enquiries and has never been
called to an interview or given any satisfactory response.
All that
the Department says is that this is a case of a duplicate that is
under investigation. That seems to me to be an inadequate
response to
an application made over a year before the review proceedings were
commenced. Like the previous case the applicant
is entitled to
relief.
[23] In matter No.175 the application is one for the
late registration of the applicant’s birth. The Department’s
response
to that application is to say that an identification number
had already been furnished to the applicant and that they required
fingerprint verification. However the final schedule says that the
Department’s website reflects that the applicant’s
identity document is ready for collection. That is peculiar if no
application for an identity document had been made and it raises
the
possibility that there is another application not mentioned in the
papers. Clearly the applicant has an identity number because
one
needs that in order to check on the Department’s website. It
seems likely therefore that at some stage the applicant
has made an
application for the issue of an identity document. In addition to the
information on the website the final schedule
records that on 25
October 2010 the applicant went to the Department and was told that
her identity document had been returned
to Pretoria and that she
needed to re-apply. This would no doubt be on the basis that it had
been available for collection and
not collected so that it had been
returned for destruction. As the application papers only reflect an
application for the late
registration of the applicant’s birth
and the information furnished in the final schedule reflects that her
birth has been
registered it seems to me that the application for
review does not disclose any proper grounds for the grant of relief
and it must
be dismissed.
[24] The last case in this category is one where there
has patently been an undue rush to commence proceedings. The
applicant applied
for the issue of an identity document in October
2008. As he received no response he approached his attorneys who
wrote a letter
of demand on 6 October 2009. Whether provoked by that
letter or merely as a matter of coincidence on 7 October 2009 the
Department’s
customer service centre wrote to the applicant
informing him that it was ‘unfortunately necessary to request
that you submit
a new application for an identity document’.
This the applicant did on 26 October 2009. A further letter of demand
was sent
by the attorneys on 1 February 2010 a little over three
months later and the application was launched on 12 March 2010. I do
not
regard a delay of a little over four months as being so
unreasonable as to justify the commencement of review proceedings.
The
application must accordingly be dismissed.
[25] Matter No.181 differs from the others in that it
was an application for an unabridged birth certificate for the
applicant’s
daughter. There was undoubtedly a significant delay
in dealing with this application. However, on the day that the
applicant deposed
to her founding affidavit she visited the
Department’s offices and was given an explanation for the delay
which she says
did not make sense to her. She does not say what that
explanation was. She was also given a toll-free number to telephone
in order
to enquire about the application. For some reason that is
not explained in the papers neither she nor the attorneys bothered to
telephone that number to make enquiries and ascertain what the true
position was. That quite clearly ought to have been done before
launching an application for a review of the failure to issue the
unabridged birth certificate. In those circumstances the application
must be dismissed.
[26] In matter No.158 the applicant has already obtained
an order and thereafter launched contempt of court proceedings.
According
to the final schedule she has made a fresh application for
an identity document, which accords with the terms of the existing
order.
In those circumstances no question of contempt arises and the
contempt application must be dismissed.
[27] Four other applications fall to be dismissed. In
matter No.55 the application was made on 13 June 2005. The letter of
demand
was only written four years later. That requires an extension
of time for the commencement of review proceedings. Given the lengthy
delay I am not satisfied that it is in the interests of justice to
extend the time period. In matter 61 the applicant made an LRB
application in 2007 and a subsequent application in February 2009.
For reasons that are not explained the review is based on the
earlier
application. That is impermissible.
[28] In matters 132 and 174 the receipts annexed to the
founding affidavit and the letter of demand are entirely illegible so
that
it is not possible to ascertain what application was in fact
made or even when the application was made. As the court cannot read
the basic documents on which these applications are founded the
applications must be dismissed.
[29] In five cases
3
it is recorded in the final schedule
that the applicants have been issued with birth certificates. The
schedule also says that in
each case, whatever the nature of the
original application, a fresh application for an identity document
has been lodged. That
leaves only the question of the costs of the
applications. As the applicants were clearly entitled to receive
birth certificates
and in each case there was a substantial delay in
providing them with a birth certificate I am satisfied that an order
for costs
should be made on the same footing as in the earlier
judgments.
[30] In matters 45 and 135 the applicants applied for
the issue of a duplicate identity document. In the one case the
application
was made on 3 September 2007 and in the other on 11
September 2006. In both cases I think it appropriate to extend the
time
period of 180 days for bringing review applications. There is no
suggestion by the Department that it will be prejudiced in that
event
and there appears to be no reason for blaming the applicants for the
delay. The failure to take a decision within a reasonable
time on
their applications for identity documents should be reviewed and
declared to be unlawful and an appropriate order made
for further
relief directed at resolving their applications.
[31] Matter 25 is an LRB application made in February
2009. The review application was launched on 22 January 2010. That
was done
in the face of a letter from the Department dated 20 January
2010 saying that they were investigating the application. The
application
should not have been launched without ascertaining the
outcome of those investigations. However, by the time the final
schedule
was provided in November 2010 nothing had been forthcoming
in that regard. In those circumstances it seems to me that the
applicant
should obtain relief by way of review and ancillary relief.
The same applies to matter 32, where the same letter was received by
the attorneys prior to the commencement of application proceedings
and the proceedings were commenced five days later notwithstanding
the letter. In my view, however, these are clearly cases where the
attorneys should not have launched the proceedings when they
did but
should have afforded the Department an opportunity to complete their
investigations before commencing proceedings. As I
have remarked in
other cases there appears to have been a rush to commence
proceedings. As a mark of its displeasure at this conduct
on the part
of the attorneys the fee to be awarded in these cases should be
reduced by 40%.
[32] That leaves 31 cases. There are 18 that pre-date
the change in Departmental procedure referred to by Mr Ramashia in
his affidavit.
That change occurred on 25 April 2008. Prior to that
date people would apply simultaneously for the late registration of
their
birth and the issue of an identity document. After that date
the LRB application would have to be made and dealt with before the
application for an identity document could be made. The 18 cases that
pre-date 25 April 2008 appear to be cases where the two applications
were made simultaneously. The other 13 applications are applications
where it is plain from the receipts that the applicant only
made an
LRB application. In all these cases, however, the Departmental
response is simply that they have no trace of the applications
and
that the applicants must re-apply.
[33] I am satisfied that in each of these cases an
unreasonable period of time has elapsed since the making of the
applications
and that they should already have been disposed of by
the Department. In those cases pre-dating 25 April 2008 I am also
satisfied
that the period 180 days for commencing review proceedings
should be extended. In that regard I am principally guided by the
circumstances
of the applicants, the fact that the delay is not be
laid at their door and the fact that the Department has not opposed
an extension
of time. In all these cases, therefore, it seems to me
that the applicants should be granted relief by way of a review of
the Department’s
failure to deal with their LRB applications.
Whilst in 18 cases the applicant has, in addition tot the LRB
application, made an
application for an identity document, it would I
think be disruptive of the current procedures in the Department to
grant relief
in relation to those applications. What should happen is
that the Department must dispose of their LRB applications and once
birth
certificates have been issued the applicants can then apply for
identity documents in accordance with current procedures.
[34] It is said in the final schedule in respect of some
of these applicants that they have in fact attended interviews with
the
Department. This is notwithstanding the Department saying that it
has no trace of their applications. That raises a concern arising
from the change in Departmental procedure that took effect on 25
April 2008 and from the fact that the applicants seem to have
believed that they had made both and LRB application and applied for
an identity document even where it is patently clear from
the
receipts that they have not done so. It occurs to me that in some at
least of these cases the applicant’s birth may have
been
registered but that when they have returned to the Department to make
enquiries they have enquired as to the issue of an identity
document
rather than a birth certificate. It may be therefore that some of
these 31 applicants have in fact had their births registered
and
would be in a position now to apply for an identity document were
they aware of that fact. In responding to the order that
I propose to
make, which is similar to the orders that I made in comparable
matters in the Pietermaritzburg cases the Department
should bear this
possibility in mind.
[35] There is one other matter that
should be dealt with. In 13 of these cases it is clear that the
applicants only made an LRB
application. Nonetheless in every letter
of demand it is said that they applied for an identity document
together with an application
for the late registration of their
birth. In all cases bar one
4
the founding affidavit is drafted on
the basis that the applicant applied for an identity document in
conjunction with an LRB application.
That this was incorrect should
have been apparent to the attorneys, even if their clients were
subject to a misapprehension in
that regard. It was the
responsibility of the attorneys to clarify the matter for their
clients and to pursue their clients’
rights strictly in
accordance with the terms of the receipts. It is unnecessary for me
to speculate as to why they did not do so.
The fact is that they did
not do so and in failing to do so did not properly discharge their
duty to their clients or to the court.
Again, in my view, the court
should mark its displeasure in that regard by reducing the fees to
which they are entitled by 40%.
[36] In the last of these cases, matter 15, an order was
made on 6 April 2010 recording that the applicant’s birth had
been
registered and that her identity document was available for
collection from a Mr Burger at the Pinetown offices of the
Department.
According to the final schedule the applicant called at
the offices on a date that she cannot remember and Mr Burger was not
present.
She was told that her identity document was not yet ready
for collection. It seems to me that this is a case similar to two
that
I dealt with in paragraph 14 of the earlier judgment in relation
to Durban cases. A similar order will issue.
[37] In the result I grant the following orders:
(a) Matters No.35, 40, 41, 53, 61, 72, 83, 91, 99, 103,
121, 128, 132, 134, 136, 137, 146, 151, 156, 161, 162, 174, 175, 178
and
181 are dismissed.
(b) In matters 59 and 158 the contempt of court
applications are dismissed with no order for costs.
(c) In each of matters 29, 47, 58, 64, 81 and 141 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.
(d) In matter 82 the following order is granted:
(aa) The second respondent’s failure to take a
decision with a reasonable time on the applicant’s application
for the
issue of an amended identity document correctly reflecting
her date of birth is reviewed and declared to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the applicant’s
application; the causes of the delay in
processing the applications; in the event of the application not yet
having been finalised
the requirements of the Department (if any) by
way of further information, attendance at interviews or otherwise
that are necessary
to finalise the application and the steps being
taken by the Department to finalise the application.
(cc) The application is adjourned for hearing in the
motion court on Monday, 28 February 2011.
(dd) 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.
(e) In matters 45 and 135 the following order is
granted:
(aa) The second respondent’s failure to take a
decision within a reasonable time on the applicant’s
application for
the issue of a duplicate identity document in terms
of Regulation 14 of the Identification Regulations as published in
Government
Notice R361 in Government Gazette 29824 of 20 April 2008
(as amended) is reviewed and declared to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the applicant’s
application for the issue of a duplicate
identity document; the causes of the delay in processing the
application; in the event
of the application not yet having been
finalised the requirements of the Department (if any) by way of
further information, attendance
at interviews or otherwise that are
necessary to finalise the application and the steps being taken by
the Department to finalise
the application.
(cc) The application is adjourned to the Motion Court on
28 February 2011.
(dd) 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.
(f) In matters 48 and 168 the following order is
granted:
(aa) The second respondent’s failure to take a
decision within a reasonable time on the applicant’s
application for
the issue of a corrected identity document in terms
of
s 19
of the
Identification Act 68 of 1997
is reviewed and declared
to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the applicant’s
application for the issue of a corrected
identity document; the causes of the delay in processing the
application; in the event
of the application not yet having been
finalised the requirements of the Department (if any) by way of
further information, attendance
at interviews or otherwise that are
necessary to finalise the application and the steps being taken by
the Department to finalise
the application.
(cc) The application is adjourned to the Motion Court on
28 February 2011.
(dd) 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.
(g) In matter167 the following order is granted:
(aa) The second respondent’s failure to take a
decision on the applicant’s application for an identity
document in terms
of
s 15
of the
Identification Act 68 of 1997
is reviewed and declared to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the applicant’s
application for the issue of an identity
document; the causes of the delay in processing the application; in
the event of the application
not yet having been finalised the
requirements of the Department (if any) by way of further
information, attendance at interviews
or otherwise that are necessary
to finalise the application and the steps being taken by the
Department to finalise the application.
(cc) The application is adjourned to the Motion Court on
28 February 2011.
(dd) 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.
(h) In matters 28, 37, 51, 57, 66, 68, 70, 71, 75, 78,
92, 93, 104, 106, 113, 122, 160 and 180 the following order is
granted:
(aa) The second respondent’s failure to take a
decision within a reasonable time on the application for the late
registration
of the applicant’s birth in terms of
s 9(3A)
of
the
Births and Deaths Registration Act 51 of 1992
is reviewed and
declared to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the application
for the late registration of the applicant’s
birth; the causes of the delay in processing the application; in the
application
not yet having been finalised the requirements of the
Department (if any) by way of further information, attendance at
interviews
or otherwise that are necessary to finalise the
application and the steps being taken by the Department to finalise
the application.
(cc) The application is adjourned to the Motion Court on
28 February 2011.
(dd) 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.
(i) In matters 25, 26, 32, 39, 87, 100, 116, 120, 140,
144, 148, 157, 164, 172 and 179 the following order is granted:
(aa) The second respondent’s failure to take a
decision within a reasonable time on the application for the late
registration
of the applicant’s birth in terms of
s 9(3A)
of
the
Births and Deaths Registration Act 51 of 1992
is reviewed and
declared to be unlawful.
(bb) The respondents are directed to deliver an
affidavit by an authorised official in which is set out the outcome
of the application
for the late registration of the applicant’s
birth; the causes of the delay in processing the application; in the
application
not yet having been finalised the requirements of the
Department (if any) by way of further information, attendance at
interviews
or otherwise that are necessary to finalise the
application and the steps being taken by the Department to finalise
the application.
(cc) The application is adjourned to the Motion Court on
28 February 2011.
(dd) The respondents are ordered to pay the applicant’s
costs of the application, such costs to be in an amount of R3000.00
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.
(j)
Matter 15 is adjourned for
hearing in the Motion Court at Durban on Monday 28 February
2011. The respondents are directed
to have available at court for
collection by the applicant her identity document. If it has been
handed to the applicant prior
to that then an affidavit must be
delivered by the official who handed the identity document to her
stating when and where that
took place and attaching proof of receipt
by the applicant.
DATES OF HEARING 15, 27 & 29 SEPTEMBER 2010
DATE OF JUDGMENT 9 FEBRUARY 2011
APPLICANTS’ COUNSEL MS D SRIDUTT (Heads of
argument prepared by Mr G. D. Harpur SC with Ms D Sridutt)
APPLICANTS’ ATTORNEYS GOODWAY & BUCK
RESPONDENTS’ COUNSEL MR R.B.G. CHOUDREE SC (with
Ms J. Hendricks)
RESPONDENTS’ ATTORNEY THE STATE ATTORNEY
1
Those
of
Thusi v Minister of Home Affairs &
Others and 71 other cases
handed down
in Pietermaritzburg and
Myeza v
Minister of Home Affairs & Others and 106 other cases
handed down in Durban.
2
Nos.41,
83, 128, 136 and 151 on the Durban roll.
3
Nos.29,
58, 64, 81 and 141.
4
No.172.