Sibiya v Director-General: Home Affairs and Others (13859/08) [2009] ZAKZPHC 6; [2009] 3 All SA 68 (KZN) ; 2009 (5) SA 145 (KZP) (18 March 2009)

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[2009] ZAKZPHC 6
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Sibiya v Director-General: Home Affairs and Others (13859/08) [2009] ZAKZPHC 6; [2009] 3 All SA 68 (KZN) ; 2009 (5) SA 145 (KZP) (18 March 2009)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL
DIVISION, PIETERMARITZBURG)
CASE
NO. 13859/08 AND 55 RELATED CASES
In
the matter between:
E
SIBIYA APPLICANT
and
DIRECTOR-GENERAL
: HOME AFFAIRS FIRST RESPONDENT
MINISTER
OF HOME AFFAIRS SECOND RESPONDENT
AND
55 RELATED CASES
J U D G M E N T
DELIVERED
ON: 18
th
March 2009
WALLIS
J:
[1] The social security
applications that previously occupied a very large proportion of the
Motion Roll in this Court and also
in the Durban and Coast Local
Division of the High Court have largely disappeared from the Court
rolls consequent upon the implementation
of the practice directive
flowing from the judgment in
Cele
v The South African Social Security Agency and 22 Related Cases
1
.
However, their place has been taken by an equal volume of cases
directed against the Minister and the Director-General of the

Department of Home Affairs relating to the issue of identity
documents. These cases bear a marked similarity to the social
security cases dealt with in
Cele
notwithstanding the fact that both the subject matter and the
identity of the respondents differs. Accordingly when twenty such

applications came before me in the Motion Court in Pietermaritzburg
on the 27
th
January 2009 I adjourned them to the Motion Roll on the 5
th
February 2009 for the purpose of hearing full argument and seeing
whether there is a way to address the issues arising in these
matters
in a more effective and less costly way. In doing so I was mindful
of the fact that Ms. Nkepu, from the State Attorney’s
office, who
appeared on behalf of the respondents, indicated that there is a
considerable problem with these matters and that it
is desirable that
some attempt be made to address the problem.
[2] When adjourning those applications I gave certain
directions intended to facilitate a consideration of the broader
problems
raised by these cases. The directions read as follows:-
The respondents are to be represented at the resumed hearing by the
member of the staff of the State Attorney’s office responsible

for dealing with cases arising out of the alleged failure of the
respondent to issue bar-coded identification documents.
A representative of the respondents is to be present at Court, such
representative to be able to explain to the Court the position

within the administration of the Department in dealing with
applications for identification documents and the problems
experienced
therewith, as well as the Department’s policy in
dealing with letters of demand, such as those forming part of the
papers
in each of the cases...
In each of cases 10 - 29, where the applicant’s claim is
initially attended to by an agency other than an attorney, an

affidavit is to be filed by an appropriate representative of the
agency ... explaining:-
(a) The basis upon which they advertise for or
otherwise secure clients.
(b) The basis insofar as remuneration is concerned upon
which they represent their clients in applications of this type.
Where
one agency represents more than one applicant it will suffice
for a single general affidavit to be delivered on behalf of that

agency. In the case of the agencies known as Siyathuthuka Advisors
and Magnavolt Trading, the affidavit must include an explanation
of
the basis upon which they operate under those different names from
the same postal address.
In the seven applications that I identified in the course of this
morning’s proceedings where the applicants are reflected
on the
Independent Electoral Commission website as being registered as
voters, an explanation must be given as to the basis
upon which
they secured that registration and when they obtained the necessary
bar-coded identification documents required
for such registration.
In matter number 11, which is reflected on my Roll as the matter of
Shezi, where there are also application papers in a matter
of
Dlamini, the attorneys must furnish an explanation for the fact
that there appear to be two sets of papers under the same
case
number but different names.
In each application the instructing attorney is to deliver a notice
setting out the basis upon which they (and any other legal

practitioner such as counsel or a correspondent attorney) are
acting insofar as the recovery of fees and expenses is concerned

and what payments are made by the attorney in relation to that
application.”
[3] I thought that it would assist in the consideration
of the issues arising in these applications for the papers to be
considered
by independent counsel who would be able to identify any
difficulties therewith and provide submissions thereon from a
non-partisan
perspective, as well as address submissions on the
broader problems raised by these applications. I was also
concerned that
the relationship between the various firms of
attorneys acting on behalf of the applicants and the agencies
through whom they
appeared to obtain their instructions might raise
ethical issues that require the attention of the KwaZulu-Natal Law
Society.
Accordingly I requested Mr. A. Dickson SC of the
Pietermaritzburg Bar to assist the Court as
amicus curiae
and
he and Ms E Bezuidenhout willingly undertook that task. I have had
the benefit of full submissions from them on the relevant
issues in
these cases and it is appropriate for me to express my gratitude to
them for their contribution.
[4] When the matters
again came before me on the adjourned date there were, in addition
to the original twenty cases a further
thirty six cases of the same
nature, so that in the result there were fifty six cases requiring
my attention
2
.
Some of these were new cases and others had been adjourned by
other judges to be dealt with together with the general body
of such
cases. At the hearing on the 5
th
February 2009 Mr. D.J. Shaw QC appeared together with Mr. D.
Woodhaymal for a number of the applicants; Mr. A. Findlay SC,

together with Mr. R. Ungerer, for others and Mr. R. Nirghin for the
balance. The respondents were represented by Mr. M. Bofilatos
and
Ms G Kyriazis on the instructions on the State Attorney, Pretoria,
and the State Attorney in Durban, Mr. K. Govender, appeared
together
with Ms. M Jonas and Ms N Nkepu. As argument could not be completed
on that day, because counsel for the applicants
wished to have
additional time in which to respond to the submissions by the
amici
curiae
, the case
was then further adjourned to 13 February 2009, when argument was
completed and judgment reserved. This judgment
first addresses the
general issues in these applications and then the specific
applications.
[5] The first thing that becomes apparent on reading
the files in these applications is that the attorneys concerned are
using
a standard precedent as was done in the
Cele
case. In
each case an order is sought in the following, or substantially the
following, terms, in some cases omitting the alternative
prayer:-
“
1. The First Respondent is directed to process the
applicant’s application for an identity document made on the
(date) at the
...
Office of the Department of Home Affairs,
within 30 days from the date of this order.
The First Respondent is directed to do all such things as may be
necessary to ensure that the Applicant’s identity document
is
available at the District Office of the Department of Home Affairs
for collection by the Applicant within 45 days of the
date of this
order.
Alternative to paragraph 2
The First Respondent is directed to provide the Applicant’s
Attorney of Record with reasons stating why the identity document

cannot be issued and made available for collection, in the event of
his inability to comply with the terms of paragraph 2 above,
such
reasons to be provided within 35 days of the date of this order.
The Respondents are ordered to pay the costs of this application,
jointly and severally;
The Applicant be granted further or alternative relief.”
[6] The accompanying
affidavit is likewise in standard terms common to each of the
applicants, with only minor and irrelevant
variations
3
.
The central allegations (taken from the affidavit in the case of
Mr. E. D Sibiya) read as follows, without emendation in regard
to
the many grammatical errors:-
“
4.
The facts stated herein are true and correct and fall
within my personal knowledge save where I have indicated otherwise.
Wherever
I make an averment relating to a statute or to the law, I
do so on the basis of having received legal advice.
5.
This Application concerns the
Identification Act, No.
68 of 1997
to which I hereinafter refer to as “The Act”.
In terms of Chapter 2 thereof, the First Respondent has
the duty to maintain a population register and in terms of Chapter 3
it
is his duty to receive applications for and to issue identity
document to South African Citizens and to persons lawfully and

permanently resident in the Republic of South Africa.
6.
The purpose of this application is to obtain an order
which would ensure that the First Respondent issue me with an
identity document
for which I had made application at the Pinetown
District office of the Department of Home Affairs on the 23
rd
June 2008.
7.
Annexed hereto, marked “annexure A”, is a copy of
the acknowledge of receipt given to me by the District Office on the
occasion
I made the application.
8.
I was told that it would take about three months for my
application to be processed and for my identity document to be
issued.
9.
I have returned to the District Office on several
occasions however was notified by the official who had attended to
me that my
identity document had not arrived and that I was to keep
contacting them to check whether same had arrived.
10.
This process eventually frustrated me and I was forced
to seek advise. An advisory firm called Magnavolt Trading addressed
a
letter on my behalf of the district office. A copy of the said
letter is attached hereto marked annexure B. However, despite
this
assistance I am still without an identity document and I still do
not have an official explanation why this is so.
11.
In the letter to the district office, the advisory firm
requested that my identity document be made available for collection
within
30 days of dispatch of the said letter, alternatively, that a
full explanation be given why it cannot be issued.
12.
A copy of the letter is annexed hereto marked ‘B’
together with the registered slip.
13.
At the time of deposing to the affidavit, I understand
that Magnavolt Trading has still not received a response from the
district
office.
14.
Neither the Act nor the Identification Regulations
published in terms of the Act in Government Notice R978 of 31 July
1998 fix
a time period within which an application for an identity
document is to be processed and responded to. In the absence of
such
a provision it must be done within a reasonable period of time.
15.
Considering what I was told at the time I made the
application, a reasonable period seems to be three months. It is
clear from
annexure ‘A’ which bears the date stamp the
application was made that I have waited well in excess of three
months and I
have still not received my identity document.
16.
It is disappointing to note that none of the officials
who assisted me when I personally called upon the district office
for my
identity document could either furnish me with my identity
document or a suitable reason why same could not be processed.
This
lack of assistance is further amplified by the fact that the
letter referred to in annexure ‘B’ has gone unanswered.
If there was a problem in the way of issuing an
identity document to me and I was at fault, I could have tried to
resolve it if
I was notified. However there seems to be total
silence on the part of the Respondents.
17.
I have complied fully with all the requirements
expected of me in an application for a bar coded identity document.
18.
I can state from personal knowledge that I am a South
African citizen by birth and that I am a person who is lawfully and
permanently
resident in South Africa. This is the second category
of persons, together with citizens, identified in Section 3 of the
Act,
as being subject to its provisions and therefore obliged to
apply for an “identity card” referred to in Section 14 of “THE

ACT”.
19.
Such cards are not yet being issued and what I am
entitled to receive, in terms of section 25 of the Act, is a green
bar coded
identity document.
20.
I have suffered a measure of indignity in having been
denied the official document by which I can identity myself in the
same
manner as most other persons. It leaves me with the feeling
that I do not exist in the eyes of the government. There have also

been practical difficulties that have come my way.
20.1 I will not been able to vote in the election.
20.2 I have been refused the benefit of having a bank
account in my own name.
20.3 I have been unable to take out an insurance policy
to cover the costs of my funeral, or life insurance for that matter.
20.4 I have been also unable and have been experiencing
difficulty in obtaining gainful employment.
20.5 I have also been unable to obtain credit from any
financial institution or departmental stores.
The reason for the above was that I could not prove my
identity as a bar coded identity document is always needed.
21.
I have a right to an identity document and the first
respondent is obliged, in terms of the Act, to issue me with one in
accordance
with my application which was made as set out in Annexure
‘A’. Should there be a sound reason why he cannot do so, then

he should disclose those reasons to me so that he can try to address
the problem and assist him in performing his statutory duty.
22.
The Respondents action or lack thereof in not
responding to my application for a bar coded identity document is
clearly unlawful.”
[7] A number of legal
issues arose and were debated before me arising out of these
relatively simply allegations. Counsel were
agreed that in the
light of the judgment in
Cele’s
case
4
the provisions of the Institution of Legal Proceedings against
certain Organs of State Act 40 of 2002 do not apply to these
applications. That leaves two other questions. The first is
whether, as alleged the applicants’ claims lie in terms of the
Identification Act 68 of 1997
or in terms of its predecessor the
Identification Act 72 of 1986 (“the 1986 Act”). The second is
whether, and if so to
in what pertinent respects, the provisions of
PAJA
5
apply in respect of these applications. Apart from the bald
allegation that the
Identification Act 1997
applies neither of these
questions is addressed in the applications, nor, it is fair to say,
were they questions on which the
counsel who appeared before me at
the initial hearing were prepared to address me.
[8] The question of
which
Identification Act is
applicable arises because the 1997 Act
provides for the issue of identity cards rather than the familiar
green bar coded identity
document. The latter form of identity
document was issued in terms of the 1986 Act. That Act was repealed
in its entirety by
section 24 of the 1997 Act but, presumably
because the Department was not yet in a position to issue the
proposed identity cards,
transitional arrangements were made in
section 25 of the 1997 Act. Some confusion arose in the course of
argument as to the
wording of this section but the position has now
been clarified.
6
The section as amended in 2000 reads as follows:-
“
1. Until a date determined by the Minister by notice
in the
Gazette
the Director-General shall continue to issue
the green, bar coded identity documents in accordance with the
Identification Act
1986 (Act No. 72 of 1986) despite the repeal of
that Act by section 24.
Any green, bar coded identity document issued in accordance with
the Identification Act 1986 shall remain valid until it is
replaced
by an identity card issued in terms of section 14 or until a date
contemplated in subsection (4), whichever is the
sooner.
As from the date of commencement of the
Identification Amendment
Act 2000
, all forms of identity documents other than the green, bar
coded identity documents issued in accordance with the
Identification
Act 1986, will cease to be valid.
The Minister may by notice in the
Gazette
fix a date for the
replacement of green bar coded identity documents referred to in
subsection (2) and may make regulations
regarding such
replacement.”
[9] Mr. Shaw QC for certain of the applicants pointed
out that the language of section 25(1) requires the Director-General
to
“continue” to issue the green, bar coded identity documents
“in accordance with the Identification Act, 1986"
notwithstanding
the repeal of that Act. The more natural sense of
the language used is that until the identity cards are available to
be issued
in terms of the 1997 Act there is to be continuity in that
applications will be made and processed under the 1986 Act resulting

in the issue of a green bar coded identity document. There is force
in this contention and it is supported by the fact that
elsewhere in
the Act there is no reference to the green, bar coded identity
document. Had it been the intention that this would
simply be
issued in lieu of an identity card one would have expected that the
definition of ‘identity card’ in section 1
of the 1997 Act would
have included a green bar coded identity document, but that is not
the case. Instead the definition section
refers only to identity
cards, temporary identity certificates and birth, marriage or death
certificates issued under the 1997
Act. That in turn creates
difficulties under section 18 of the 1997 Act which deals with
criminal offences including those involving
the unlawful or
fraudulent use of identification documents.
[10] On the other hand, however, the 1997 Act is
explicit in saying that the 1986 Act is repealed. Had it been the
intention
to preserve the 1986 Act in force until the new identity
card could be issued under the 1997 Act nothing would have been
simpler
than to say so. Alternatively the 1986 Act could have been
retained and the 1997 Act not brought into force until it could be

applied and identity cards issued. The preservation of the power
to issue the green bar coded identity document is expressly
said to
be a transitional provision.
[11] Clearly section 25
has not been well thought out and is poorly expressed. In my view
however (and I understood in the course
of argument that Mr. Shaw
was inclined to accept this) the better construction of section 25
is that it does nothing more than
provide that until it is possible
to issue identity cards as contemplated under the 1997 Act the
Department will continue to
issue the green, bar coded identity
documents provided for in the 1986 Act, but will do so under and in
accordance with the terms
of the 1997 Act. I reach that conclusion
essentially for three reasons. Firstly the clearly expressed
intention of the 1997
Act was that the 1986 Act would be repealed
and would fall away. Secondly I can find nothing in the language
of section 25
that is directed at maintaining the whole of the 1986
Act in force, as opposed to permitting the continued issue of the
green,
bar coded identity document. Thirdly, unless the 1986 Act
were kept in force in its entirety it would be difficult to
prosecute
cases of identity fraud, save under the common law offence
of fraud, and other improper and undesirable uses of identification

documents would probably not be capable of being prosecuted at all.
If the green, bar coded identity document is taken to be
issued in
lieu of the identity card provided for under the 1997 Act that
problem can be overcome because the references to identity
cards in
section 18 can then be construed as including the green bar coded
identity document. That is because the definition
of that term
only applies unless the context otherwise indicates.
7
In my view, once it is recognised that the continued issue of
green bar coded identity documents is purely a transitional

provision until identity cards can be issued, it would be
incongruous or absurd to construe the expression “identity card”

in the various subsections of section 18 as excluding such
documents.
[12] I accordingly hold that the 1997 Act is the proper
statute under which the applicants’ claims to be entitled to the
issue
of identity documents lie.
[13] Turning to the
application of PAJA the attitude of the various applicants differed.
Mr. Shaw accepted that if an application
for an identity document
has not been dealt with at all that constitutes a failure to take a
decision and this is administrative
action as defined.
8
In heads of argument, however, he had submitted that if an
identity document had been issued but not delivered to the relevant

applicant this fell outside the definition of administrative action
although he did not press this in oral argument. In my view
that
cannot in any event be correct because subparagraph (f) of the
definition of “decision” includes a decision relating
to
“retaining or refusing to deliver up an article.” That seems
to me to be broad enough to encompass a situation where
the
Department has produced an identity document in response to an
application but has failed to make that identity document
available
to the applicant. I also think that it is immaterial for the
purposes of PAJA at what stage of the process of producing
and
making available an identity document that process breaks down. The
applicants make a single application for an identity
document and do
not receive it. To say that there is administrative action when
the Department fails or neglects to attend
to the application, but
not when they have produced an identity document in response to the
application but failed to make it
available to the applicant, seems
to me to involve a distinction without any material difference to
the applicant. In either
case the applicant has not received that
to which they claim to be entitled. In my opinion it is
inappropriate to fragment what
should be a single administrative
process into component parts and then to classify some of those
parts as administrative action
and others as falling outside that
field. This is particularly so when the basic remedy in either
event will be the same, namely
a mandatory order requiring the
Department to perform the task of providing the citizen with an
identity document.
[14] This is also
consistent, as Mr. Dickson pointed out in reply, with the fact that
there is no longer a distinction between
administrative law under
the Constitution and administrative law under the common law.
9
PAJA is the statute enacted to give effect to the constitutional
right to just administrative action and the underlying intention
is
that it is comprehensive and should cover the entire field of
administrative law.
10
Whilst PAJA itself refers to administrative action as constituting
either a decision or a failure to take a decision it is apparent

from the definition of “decision” that it extends to the basic
conduct of administrative functionaries in dealing with ordinary

citizens in circumstances which can adversely affect the rights of
those citizens and which has a direct, external legal effect
on
them. The failure by the State to provide an identity document to a
citizen who is entitled thereto, whatever the reason
for that
failure may be, clearly affects the rights of that person and has a
direct, external legal effect upon them. It would
be surprising
were this not so bearing in mind that even under our
pre-constitutional dispensation it was held that the withdrawal
of
such a document could be the subject of judicial review, albeit
within the narrow constraints of our administrative law at
the
time.
11
[15] It follows that
each of the applications in the present case is properly an
application in terms of PAJA. As I have said
that is nowhere
recognised in the application papers. The fault in this regard
lies with the attorneys who prepared the application
papers. It is
extraordinary that they should not have applied their minds to this
possibility nor been advised by the various
counsel who appear
regularly in these matters of the potential application of PAJA.
What is even more extraordinary is that
a number of the attorneys
and counsel who are regularly involved in these cases were formerly
regularly involved in the social
security cases dealt with in
Cele.
The judgment in
that case dealt with the implications of PAJA in regard to
applications for social security grants and appeals
against refusals
of such grants. The type of proceeding was fundamentally similar to
the present applications. It was there
held
12
after a consideration of the authorities, that PAJA was applicable
to those applications. I said there that the failure by the

applicants’ legal representatives to recognise the potential
application of PAJA was deplorable. It is even more deplorable
in
the light of that judgment that the practitioners involved in these
cases have continued to ignore the implications of PAJA
for their
applications. It is typical of the superficial and inadequate
approach that is adopted to the preparation of the papers
in these
cases and, regrettably, until the involvement of leading counsel in
the argument before me, in the presentation of these
cases by
counsel.
[16] The conclusion that PAJA is applicable brings into
focus section 7(1) of PAJA which provides that any proceedings for
judicial
review in terms of section 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 section 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 section
7(1) of PAJA can commence
to run.
[17] Without any significant evidence on these
questions or any reasonably comprehensive attempt to address them it
is well-nigh
impossible to say when the time period in each case
commenced to run or when it would have expired. It is equally
impossible
to say which of these applications was brought timeously.
In a number of the cases before me a reasonable approach to the time

that has elapsed would suggest that they have. However, in a
number of others, it is plain on any basis that the 180 day period

must have expired long before letters of demand were written or
proceedings were commenced and accordingly that it was necessary
for
the applicant to seek an extension of time in terms of section 9(1)
of PAJA. I have no doubt that in most, if not all,
of the cases
where the time limit of 180 days had been exceeded the Court would
look favourably upon an application in terms
of section 9(1).
However, it is not open to the applicants’ attorneys (for the
applicants themselves would be wholly unaware
of these technical
requirements of PAJA) to ignore these requirements and assume that
the time period will either be overlooked
or extended
notwithstanding the absence of an application for an extension of
time. That is an impermissible approach to the
preparation of
application papers.
[18] The order sought
in each of these cases presupposed that the respondents had not
dealt with the applications for the issue
of identity documents.
That was the correct approach because it cannot matter where the
problem has arisen in processing the
application. In each instance
an application had been made and no identity document had been
forthcoming, at least as far as
the application papers go.
13
This approach means that when viewed in terms of PAJA the complaint
in each case is of a failure to take a decision in terms
of section
6(2)(g). That brings section 6(3)(a) into play. This section
reads as follows:-
“If any person relies on the ground of review referred to in
subsection (2)(g) he or she may in respect of a failure to take
a
decision, where:-
(i) an administrator has a duty to take a decision;
(ii) there is no law that prescribes a period within
which the administrator is required to take that decision; and
the administrator has failed to take that decision,
institute proceedings in a Court or tribunal for judicial review of
the failure to take the decision on the ground that there
has been
unreasonable delay in taking the decision.”
To some degree this is
foreshadowed in the founding affidavits in these cases where it is
alleged that neither the Act nor the
Regulations under which the
application is make fix a time period within which the application
is to be processed. It is then
alleged that “a reasonable period
seems to be three months”. This is said to be based on what each
applicant was allegedly
told when the application was made
14
.
[19] My difficulty with
this is that it presupposes that applications for the issue of an
identity document are all of precisely
the same type and involve
precisely the same issues. However, that is patently not the case.
There is a difference between
those who are seeking the issue of an
identity document for the first time and those who are seeking a
replacement identity document.
These applications are made under
different regulations and raise different issues. In regard to
initial applications for an
identity document they are frequently
accompanied by an application for the late registration of the birth
of the applicant.
This much emerges from many of the receipts in
the cases before me
15
.
That process of registering the person’s birth and including
them on the Population Register constituted in terms of section
5 of
the 1997 Act must necessarily precede the issue of an identity
document, because the identity document can only be issued
to
someone whose name has been entered in the Population Register.
Bearing in mind that many of the people concerned in these

applications are relatively unsophisticated and not well educated
the registration of their birth may involve queries and
investigation
from the side of the Department to satisfy itself as
to the accuracy of the information furnished in support of the
application.
16
Very often the only information available to the Department will
be that contained in an affidavit sworn in support of the

application for late registration. It requires little imagination
to realise that the information contained in this affidavit
may
require further investigation. All of this will delay the process
of issuing the identity document. The importance of ensuring
that
the information about a person’s date of birth is correct hardly
needs to be emphasised. In the absence of prior registration
of
birth it is difficult to see on what basis all of the applicants can
confidently say when they were born, that being a classic
example of
hearsay. If the letters of demand and the founding affidavit set out
the information that had been made available
to the Department in
support of such an application it would be possible to make a proper
assessment of how long it should take
the Department to confirm the
correctness of that information and proceed to registration. If it
would probably be necessary
to undertake an investigation that would
also emerge from a consideration of the information supplied. In its
absence it is not
possible to determine what is a reasonable time to
complete the process.
[20] In other instances the application may involve an
amendment to the applicant’s date of birth. That possibility is
expressly
recorded on the standard receipts that appear in the
application papers. Mr. Bofilatos told me, without challenge, that
such
applications almost invariably involve the applicant claiming
to have been born on a date earlier than that currently reflected
in
the population register. Manifestly such applications will need to
be investigated because, if they are granted, the applicant’s

entitlement to receive social security benefits, such as a pension,
will be accelerated. There is accordingly the possibility
that any
such application may be tainted with fraud. In one instance the
receipt rather confusingly stated that the applicant
wanted both to
register the applicant’s birth late and amend their date of birth,
which
ex hypothesi
would not yet have been recorded. Again
in the absence of adequate information no assessment of what would
be a reasonable time
in which to process the application is
possible.
[21] Even applications for an identity document
unaccompanied by these complexities may pose administrative
difficulties. It
should be reasonably straightforward where the
applicant is able to provide details of the registration of his or
her birth and
indeed in many cases where their identity numbers
accompanied the applications it appears from the Department’s
website that
the document has either been furnished or is in the
course of being processed, but very often this basic information is
missing.
In a number of cases the receipts suggested that no
information at all had been furnished in support of the application.
Other
evidence may be sparse or incomplete. It cannot be assumed
that in every case the application papers will be meticulously in

order and the processing thereof simple. The administrative
nightmare arising from the attempts by the previous regime to
balkanise
South Africa are too well-known for it to be assumed that
the processing of all these applications is a matter of plain
sailing.
[22] Turning to cases where a replacement identity
document is being sought the reasons for that may be many and
varied. The
applicant may say that their original document was
lost or stolen or has become damaged in some way. In each case the
Department
must satisfy itself of the correctness of the explanation
and that the issue of a duplicate identity document is truly
justified.
Various problems were mentioned to me in the course of
argument. Sometimes it transpires that the Department has two
people
who apparently share the same identity number or two
applications in respect of people with the same name and no apparent
distinguishing
feature. Details of a person’s marriage must be
properly captured. No doubt where there has been a divorce or a
spouse has
died this too will impact upon the process.
[23] It should not be thought that I am suggesting that
every application for an identity document or a duplicate identity
document
involves complex investigations. Were that so then the
recent public statement by the Director-General that his Department
is
issuing fifty thousand identity documents a week could not
possibly be true. I am merely indicating the nature of the
problems
that may arise in any particular instance in dealing with
an application. I have examined each of the receipts given to the

applicants in these cases. They are extremely confusing. Many of
them contain no information concerning the person’s birth
other
than the date of birth and their name. They do not suggest that any
supporting documents have been furnished. Indeed
many of them do
not record that the two identity photographs that are a prerequisite
to such an application have been furnished.
Sometimes the receipt
reflects a new application but then shows that a fee has been paid,
which suggests that it is an application
for a duplicate identity
document. Some contain what appears to be an identity number but
most do not. In a few cases an identity
number is furnished but the
Department’s website indicates that there is some error with the
identity number. It is unclear
from some of them whether the receipt
is in respect of an application for a temporary identification
certificate or one for a
permanent identity document. One or two
receipts indicate that the identity document has been delivered.
[24] As the question of
whether the Department has delayed unreasonably in attending to an
application is a question of fact
in my view if an applicant wishes
to satisfy a Court that there has been unreasonable delay in dealing
with their application
they must furnish sufficient particulars of
their personal circumstances and the nature of their application so
as to indicate
on what basis the reasonable period has been
determined. Enough information must be furnished to convey to the
Court the reasons
why they contend that there has been undue delay
in dealing with their application and why they allege that the
Department is
in default. In other words their application must be
tailored to their own situation. Whilst one must be cautious of
applying
statements made in the wholly different context of what
constitutes a reasonable time for performing a contractual
obligation
in the different environment of administrative action it
has there been held
17
that what is a reasonable time will depend amongst other things on
the particular circumstances surrounding the performance of
the
contractual obligation in question and the difficulties, obstacles
and delays in performing that were actually foreseen or
would be
foreseen by a reasonable person. It has also been said that one is
entitled to expect reasonably prompt and appropriate
action and due
diligence on the part of the party obliged to perform. Suitably
adapted these seem to me to be appropriate matters
to take into
account in determining whether a reasonable time has passed after
the lodging of an application so that it can properly
be contended
that the Department is in default.
[25] If, after taking
into account all the potential vagaries of the situation, whether
those referred to above or others not
identified by me, one could be
satisfied that a period of three months would be an adequate period
in every case within which
the Department should either provide an
identity document or refuse to do so, then the standard allegation
in this regard could
be accepted. However, it would require
considerably more information than is at present available on these
papers to satisfy
me on that score. The consequence of considering
as many applications as I had before me and requiring the parties to
address
a broad range of issues is that what has been presented
hitherto as monolithic turns out to be more fragmented and diverse
than
could have been suspected. The potential diversity of these
applications having become apparent and the broader problems that
they raise for the administration in dealing with such applications
having been brought to the fore, it would be quite unsafe
to accept
that the period of three months is a reasonable period in all cases.
It may well be an appropriate period in certain
or even many cases
but once it appears over and over again in mass-produced affidavits,
having no regard for personal circumstances
beyond the name of the
applicant, their date of birth and the date upon which they applied
for an identity document and which
disregard the differences that
exist between different applications, the allegation ceases to be
credible in any case. One of
the dangers of such mass-produced
affidavits is that once it is shown in some instances that a
particular allegation is of doubtful
validity the Court is unable to
discern in which cases it may be sound and which unsound.
18
Here the affidavits are identical even though they are made by
different people who are differently circumstanced.
[26] It is I suspect
for this reason that the practice of sending a letter of demand to
the Department has evolved, putting the
Department on terms to issue
an identity document or provide reasons for not doing so.
19
However, the usefulness of such a notice depends upon it being
couched in terms that will enable the Department to identify
the
applicant in question and their application and give them a
meaningful response. If it merely compounds existing confusion
it is
of little help. That is the case with the letters of demand
attached to the affidavits in these applications. Like the

affidavits themselves they are in standard terms and they furnish
the minimum of information. At most they contain the name
of the
applicant, their date of birth, identity number if they have one, or
the reference number of their application, the date
of the
application and the office at which it was made and nothing more.
In the case of notices emanating from agents they
use the
terminology “her/his” so that it is not apparent whether the
“client” is a woman or a man. The Ubuntu Pension
Services agency
makes it even more difficult for the Department by only furnishing
the initials and surname of the applicant.
Others furnish only one
first name even if the applicant has more than one. Copies of the
receipts, which might provide a mechanism
for identifying the
application, are not attached to the notices. The notices are then
usually sent in bulk by the agents from
whom they emanate. The
papers before me show that often a single registered letter is sent
containing letters on behalf of
anywhere between sixty and ninety
applicants. Whilst it is said in the affidavit that the letter is
addressed to the District
Office, thereby suggesting that it will be
received by the officials dealing with the particular applicant, as
a matter of fact
the letters are sent to an official in the
Department of Home Affairs in Pretoria. Inundated as the
Department is with such
letters they attract no response. In
anticipation of this one firm of attorneys in the matters before me
adopted the practice
of obtaining an affidavit from the applicant in
advance of sending the letter of demand. In the affidavit the
deponent would
nonetheless swear that the letter of demand had been
sent and that no response had been received from the Department.
[27] It is of course,
as I pointed out in argument, a deplorable situation that the
Department simply does not respond to letters
of this type even by
way of a formal acknowledgement of receipt. The Constitutional
Court has recently had cause to comment
adversely on a failure by
Departments of State and their legal representatives to respond to
court processes.
20
The Court there said:-
“This is not the first occasion that the State has not responded
to a matter that is before this Court. This failure on the
part of
the State is regrettable. The State has an obligation to respond to
Court processes. It cannot simply disregard Court
processes. It
must lead by example.”
Transposed to the administrative field it seems to me
that those comments are equally apposite. We will not be able to
build
a culture of openness and transparency in the administration
of the government of this country when a matter as simple and
straightforward
as replying to correspondence as and when it is
received is ignored. This is not only a matter of simple courtesy.
If citizens
are confronted with an unresponsive bureaucracy when
they are constrained to have dealings with State departments they
will be
far more likely to resort to tactics such as the procurement
of false identity documents than would otherwise be the case. Even

if this is an extreme situation, incompetence, bungling and
unresponsiveness from the bureaucracy diminishes the respect in
which State institutions are held by the population and if the
institutions of State are undermined in this fashion the whole

fabric of our democratic society is harmed.
[28] Having said that,
the Department’s lack of response to these letters cannot be
decisive of the question whether the fact
that such a letter is sent
and attracts no response, in conjunction with the fact that the
application has been made and no identity
document has been issued
21
,
suffices to establish an answerable case that a reasonable time has
elapsed since the application was made and accordingly that
the
Department is in default. If the letters had been properly
informative and directed the Department’s attention to the
correct
application and the nature of that application my inclination might
have been to say that they did. However, as I have
already noted,
the letters do not. They all assert that the application is simply
one for the issue of an identity document
when manifestly that is
not correct in many instances. They make no attempt to distinguish
between an initial application and
one joined with an application
for the late registration of the applicant’s birth. They do not
distinguish between those instances
and an application for a
replacement identity document, whether with or without a change in
information concerning the applicant.
In other words they do not
disclose whether the application is one that first requires an entry
in the Population Register
or an alteration to such an entry or
neither of these. Other than mentioning the office where the
application was lodged no
address or contact detail for the
applicant is given. If it were, that in itself would facilitate the
resolution of cases where
the identity document had been issued but
not yet collected or delivered.
22
In some instances the letter may be confusing if not positively
misleading. Thus in one of the cases before me the letter
simply
indicated that the application had been made at Mpumulanga, without
indicating whether that was the province by that name
or Mpumulanga
in KwaZulu-Natal.
[29] My conclusion is
that on this ground alone each of these applications is fatally
defective. Mr. Shaw conceded as much in
relation to the cases in
which he appeared and indicated that I should dismiss the
applications with no order as to costs.
Mr. Findlay, whilst
accepting these defects as posing some difficulty, rather more
boldly asked for positive orders in favour
of the applicants. In
each of the ten cases in which he appeared, all on the instructions
of the same attorney, he asked for
an order in terms of paragraph 1
of the prayer, save for two cases where he conceded that identity
documents had been furnished
to the applicants
23
,
where he asked for leave to withdraw and costs. Mr Nirghin, who
appeared in six matters, asked for leave to withdraw two
applications
and for the others to be adjourned to enable the papers
to be supplemented. In the light of my conclusion that all these
applications
are fatally defective no positive orders and no costs
orders in favour of the applicants can be granted. In this event Mr
Findlay
asked that the remaining matters in which he appeared be
adjourned
sine die
to enable the applicants to supplement their papers with a view to
remedying the deficiencies. In considering that suggestion
it is
appropriate for me to deal with certain other matters arising from
the applications.
[30] Each of the applications contains allegations
concerning the prejudice that the applicants allegedly suffer in
consequence
of the non-delivery of identity documents. With one or
two exceptions where no allegations are made in this regard, the
complaint
is that the applicant will be unable to vote at the
forthcoming election; is unable to open a banking account or obtain
an insurance
policy; is unable to obtain a job and unable to obtain
credit from financial institutions. Whilst notionally plausible in
isolation
if these allegations appeared in a single case, when they
are made as a matter of rote in hundreds or even thousands of cases
they induce a measure of scepticism and a need for closer scrutiny.
[31] I start with the
allegation in regard to voting at the next general election.
Firstly, in terms of the
Electoral Act 73 of 1998
a person not in
possession of an identity document may nonetheless register to vote
and vote by obtaining a temporary identity
certificate. None of the
applicants deal with this possibility. In addition, in nine of
the cases that originally came before
me the receipt for the
application for an identity document bore an identity number. If
one is in possession of a person’s
identity number it is possible
by visiting the IEC website to ascertain whether they are registered
as a voter. I did this
in preparing for the hearing of the
original applications and discovered that seven of the twenty people
who had deposed to affidavits
saying that they would be unable to
vote at the forthcoming election were in fact duly registered as
voters
24
.
Although I raised this matter specifically in the directions I
gave for the further hearing of this case I received only three

explanations. In one it was stated that the applicant had received
their identity document at the same time as the application
was
launched and had then registered as a voter. In another that the
applicant’s identity document had been stolen and in the
third
that the applicant sought a new identity document because her date
of birth was incorrect. In the other four cases I have
not been
furnished with any explanation of how they managed to register as
voters if they did not have an identity document and
more
importantly how they came to make the allegations that they did in
their affidavits. It is I suppose notionally possible
that all of
them, having registered as voters at some stage in the past, have
subsequently lost their identity documents and
need new ones. If
that were the case they should have said so in their founding
affidavits and explained their circumstances.
In addition, were the
situation that each of them had lost their identity documents, I
would have expected the receipts proffered
in support of their
application to show that their applications were not for a new
identity document but for a replacement.
However, that is not the
case. Even then they would have been able, as would all of the
applicants who qualify to be on the
voters roll, to address the
problem of voting by simply approaching the IEC. I say all of the
applicants who qualify for inclusion
on the voters roll, because
close examination of the papers revealed that 12 of the applicants
are not so qualified because they
are under the age of 18. In other
words of the 53 people making the allegation that they could not
register as voters, 11 were
in fact registered and 12 were not
entitled to be registered. Save for the 4 mentioned in footnote 24,
I was unable to check
the position with the remainder because no
identity numbers were given on the receipts they presented.
[32] In this situation a concern naturally arises as to
whether all of the applications for the issue of an identity
document
are indeed genuine and proper applications. I am mindful
of reports that in the case of
Richter
v Minister of Home
Affairs and others
, which was heard in the Constitutional Court
commencing on the 4
th
March 2009, the Minister of Home
Affairs filed an affidavit in which she stated that fraud in
relation to identity documents
is rife in South Africa and that this
type of problem lay at the root of the decision by the British
government to require South
African visitors to obtain visas.
Accordingly where one is confronted with an application concerning
that subject matter and
containing allegations that are on their
face inconsistent with other facts that emerge, one’s suspicions
are automatically
aroused. This would not, of course, arise if
the attorneys had taken proper instructions from their clients and
furnished
a proper explanation in relation to the nature of each of
their applications for an identity document.
[33] A further and related issue arose in the case of
the 12 applicants who
ex facie
their dates of birth had
applied for identity documents when they turned sixteen, as required
by the Identification Act, and
who were accordingly not entitled in
any event to be registered as voters. In these cases, which I will
identify later in this
judgment, the applications were brought by
people who were still under the age of eighteen and who accordingly
lacked the requisite
legal standing (
locus standi
in
judicio)
to bring legal proceedings unassisted. A number of
these applicants appear to still be at school. Nonetheless they
made allegations
about their inability to obtain jobs or enter into
basic commercial transactions which one would not have expected them
to be
involved in at this time of their lives. Even with the adult
applicants it is difficult to believe that all of them have tried

and failed to open bank accounts or obtain insurance or credit or
jobs. What is credible in one individual loses its credibility
when
every applicant says the same thing.
[34] I trust that I
have said enough to demonstrate that the allegations of prejudice,
like the other standard allegations in
these affidavits, are of
little or no probative value. Whilst I am sure that in individual
cases problems of the type mentioned
have arisen in respect of
people who have applied for identity documents and not obtained
them, it is simply untenable to accept
that every single person in
that situation suffers from these same handicaps and disadvantages.
Again this illustrates the
flaw in trying to standardise these
applications without any regard for the personal circumstances of
each applicant. It is
obvious that there is no endeavour by the
attorneys concerned to ascertain from each of their clients the
nature of the difficulties
they have encountered in consequence of
not receiving an identity document
25
.
This is not a particularly difficult task. Since I reserved judgment
in these cases I have seen no less than three articles
in the local
press in which people who have applied for identity documents and
not received them have told their stories to newspaper
reporters
indicating the precise nature of their problems and their
experiences with the Department. I would have expected an
attorney
to be able to ascertain that information and put it in affidavit
form with little difficulty provided they were willing
to apply
their minds and energies to the task.
[35] It is apparent from the two bills of costs with
which I have been furnished in these matters, which all counsel
accepted
as typical, that the attorneys are charging for taking
instructions from and consulting with the applicants in each case.
In
the two bills a fee was charged in each instance for drafting the
affidavit at a rate of R125 per page, which is handsome remuneration

for getting a clerk or typist to enter a few personal details and a
couple of dates in a standard document and then pressing
the “print”
button. In the one case a further consultation with the client in
order to traverse the affidavit was claimed.
A further R100 was
charged for drafting the notice of motion. In each instance the
fees charged amounted to about R1800 by
the time the application
papers had been prepared. All the fees were charged on the maximum
rate permitted under the tariff in
Rule 70. I have considerable
reservations whether any such consultation or process of taking
instructions or drafting actually
occurs beyond perhaps a clerk
recording the name and some minor and routine personal particulars
about the applicant in order
to feed them into the computer program
and print off the application papers. The grounds for my
reservations arise not only from
these two bills and the application
papers themselves. One attorney, Ms Oodit, attached to her notice
provided in response to
my order what she described as a typical
bill of costs. It included a fee for consulting with her client to
take instructions
to set the matter down. Yet in three of her cases
the applicant’s identity document had come to hand before the
matter was
heard, in one of them at least well before any discussion
about a date of set down could have taken place. Yet in that case
she
was obviously unaware that the client had received her identity
document and indeed it appears that she could only contact the

client through the agent. In the other cases I am told that it is
not possible to contact the client.
[36] The remaining items in the bills I have seen have a similarly
surreal air. Both have claims for consultations with the client
in
regard to the notice of set down and taking instructions to proceed.
In the one case these were charged for separately.
A fee is
raised for attending to sort and arrange counsel’s brief, yet even
with the benefit of notice and preparation, including
the
instruction of leading and junior counsel, it was apparent in the
cases before me that counsel had not been briefed with
full sets of
the papers. Even if they had I fail to see what is difficult about
photocopying 12 to 15 pages and placing them
in a brief cover. I
would also be interested to see the instructions to counsel for
which R125 is charged when counsel does nothing
more than adjourn
cases or take orders by consent in every case. I have already noted
the fact that at the original hearing the
counsel who appeared were
utterly unprepared to deal with any of my queries. Yet the standard
charge by counsel derived from
these bills is R750 and for some
extraordinary reason I am told by one of the attorneys that this is
an amount that has been
agreed with the State Attorney, although the
Taxing Master has now indicated that only R300 will be allowed. This
change caused
Ms Oodit to complain that she will not be able to get
counsel for this fee because:
“Very few of these matters are settled before Counsel is briefed
and accordingly I cannot brief counsel simply to record consent

orders. Counsel is briefed to obtain the order and has to prepare
accordingly”
The problem with this
explanation and complaint is that in a number of these files, that
had previously come before the court
there were typewritten standard
orders for adjournments or the like, including orders for costs that
had manifestly been prepared
in advance with only the case number,
name of applicants and dates left blank and inserted in manuscript.
Accordingly someone,
whether counsel or attorney, does come to court
prepared to adjourn and, as there was no sign of any attorney being
present on
the first day that these matters came before me
26
,
I assume that it is counsel. In any event, how much time and effort
goes into preparing half a dozen or more standard cases
of a type
that one has seen countless times before and which experience tells
one are 99% certain to be adjourned? I repeat that
I saw no sign of
such preparation and none of my colleagues to whom I have spoken
have had any different experience.
[37] As with the social
security cases, when the attorneys succeed in obtaining orders for
costs in these matters the bills of
costs that are produced reflect
that this work was done and claim amounts of, on average, R4000,00
to R5000,00. If one assumes
on a conservative basis that ten cases
appear on the Motion Roll every day during the year in
Pietermaritzburg and a similar
number on the Motion Roll in Durban
27
there are at least five thousand such cases being heard annually in
the Courts of this province. If orders for costs are made
against
the State the total bills will be of the order of R20 to R30 million
a year leaving aside the cost in terms of the State
Attorney’s
office having to attend to these applications and the time and
effort of the Department’s officials who have to
attend to these
matters. Yet apart from the production of application papers that
are run off on a word processor in standard
form no significant
legal effort is involved in dealing with these matters. In the
social security cases I described this as
a profitable cottage
industry for the legal practitioners concerned. It remains such
even though the focus of the cases has
shifted. Indeed if anything
the cottage has grown into something more substantial and all this
at the cost of hard-pressed taxpayers
who are having to cut their
own spending in response to current economic circumstances.
[38] A variety of other difficulties emerge when the
affidavits are scrutinized. Many of these only became apparent
because of
the number of cases that ultimately accumulated on my
roll and then only after I had spent several days in careful
scrutiny of
each set of the papers with the benefit of being able to
cross-refer to other applications. Quite a few of the worst would
simply
not be apparent in the course of an ordinary motion court. I
start by pointing out that all of the affidavits claim that the

applicants are adults. This was false in 23% of cases. The
standard affidavit says that the notices are sent to the district

office concerned - which is incorrect in every case - and gave the
Department thirty days in which to issue an identity document.
The
letters from Magnavolt Trading and Ubuntu Pension Services only give
the Department fourteen days. Notwithstanding the
attenuation of the
notice period, in five cases involving Magnavolt Trading the
affidavits were signed before the expiry of the
period and overall I
found eight cases where the affidavit was sworn less than 30 days
after the demand. In two cases the letter
of demand was written
within two weeks of the application for an identity document being
made. In the case of Ubuntu Pension
Services there were five cases
in which the affidavit was sworn within less than a 30 day period
from the date of demand. The
affidavits all say that the applicant
was told at the time of applying for an identity document that it
would take about three
months to arrive. In the nine applications
where Mr Soodyall is the attorney his own letter (sent in each case
the day after
the affidavit was signed) claims that the period was
two months. In every case it is alleged that the period of notice
has expired
and there has been no response from the Department. In
many cases that is factually untrue that the period has expired
although
it is correct that in none was there a response from the
Department.
[39] All of this displays a flagrant disregard for
truth and accuracy in these affidavits. The problems I have
identified are
not occasional or incidental so as to be ascribable
to inadvertent clerical error. When only a few cases are dealt with
emanating
from different attorneys it is easy to overlook these
difficulties. However, when one is seized with fifty six such
applications,
as I was, and they are carefully perused these
deficiencies become glaringly obvious. I am well aware that a Court
does not
lightly disbelieve what is said on oath in an affidavit,
especially in circumstances where no opposing affidavits have been
filed
and the allegations made by the applicants have not been
directly challenged. However, the deficiencies in these standard
affidavits
are so extensive and demonstrate such a disregard for
accuracy and completeness that I am compelled to say that I regard
any
such affidavit in standard form as being thoroughly
untrustworthy. That is a misfortune for those applicants who have
genuinely
been the victims of bureaucratic incompetence and I lay
the blame squarely on the shoulders of the legal practitioners
responsible
for the preparation of the applications.
[40] Apart from the problems I have identified with the
contents of the affidavits the manner of their execution also gives
rise
to suspicion. Of the fifty three affidavits in the
applications before me, sixteen where Magnavolt Trading or
Siyathuthuka
agencies are involved are executed at the same police
station in Umlazi - not of itself a cause for suspicion -and purport
to
be sworn before either Constable Ntokozo P Gumede, whom
telephonic enquiries disclosed is stationed there, or Inspector
Ntobelo
P Gumbi, who according to the same enquiry is not stationed
there. I was first curious as to the reason why applicants from a

variety of places within the greater Durban area should all go to
the same police station in Section BB, Umlazi . I became

suspicious in the case of Sibiya, which was the first case on my
roll of the fifty-six that I am dealing with. I noticed that

although the receipt described the applicant as being Mr. Ernest Dan
Sibiya, both the letter of demand sent on his behalf and
the
affidavit omitted his second name. However, the signature on the
last page of the affidavit was that of E D Sibiya.
I mean no
disrespect when I say that the signature is written in a relatively
unformed and unskilful hand as if the deponent
is not accustomed to
writing. However, the first six pages of the affidavit bear the
initials “E.S” in the bottom right
hand corner. The contrast
between these initials and the signature of the deponent on the last
page is marked and startling.
One requires no expertise in the
analysis of handwriting to realise that the signature and the
initials are not from the same
hand.
[41] That caused me to examine the signature of the
Commissioner of Oaths, Constable Gumede. Again it seems apparent
that
the initials “N.P.G.” on the first six pages of the
affidavit were not written by the same person who wrote the name of
the
constable “Ntokelo P Gumede” after the attestation.
Leaving aside any other differences, the “G” of the initials is
formed by writing the letter “C” and executing a separate right
angle that meets the lower curve of the C at its extremity.

However, the letter “G” where it appears on the attestation is
wholly different consisting of a fluent and uninterrupted

semi-circle which at the point where the circle is broken returns
towards the main curve. The difference is absolutely obvious
to the
naked eye.
[42] Having noticed this problem I then compared the
various signatures purporting to be those of Constable Gumede that
appeared
on the affidavits in subsequent matters. The variations
between them are such as to convey to me the distinct possibility
that
not all come from the same hand. In addition the printing of
the Constable’s name, address, area and rank underneath the
attestation
as well as on the stamp certifying the document to be a
true copy of the original appears to be in a different hand from
both
the signature and in some instances the initials appearing on
the various pages of the affidavit. It is also the same printing

that appears on the affidavits purporting to be sworn before
Inspector Gumbi. In one case (number 45) whoever wrote that started

out by writing Gumede and changed it to Gumbi. What is more the
signature of Inspector Gumbi is extremely similar to that of

Constable Gumede
[43] It will be obvious
that problems such as these cast doubt not simply on the reliability
of the affidavits but on their genuineness.
I find it puzzling in
the extreme that the three attorneys involved in the cases emanating
from these two agencies, who practise
in different centres as far
apart as Queensburgh, in the vicinity of Pinetown to the west of
Durban, in the centre of the city
and Phoenix to the north of
Durban, should have all their affidavits executed before a
Commissioner of Oaths situated in Umlazi.
I would not have expected
this if their clients had been to their offices and consulted with
them over the preparation of affidavits.
Attorneys invariably have
arrangements with other attorneys, post office or bank officials, or
their local police station for
clients to be taken to their offices
for the purpose of having affidavits attested and commissioned.
The matters I have noticed
are consistent with some other person,
probably the agent, attending to the commissioning of the affidavit
and errors subsequently
detected in that process being remedied at a
later stage. As these are the affidavits referred to in footnote 3,
supra,
that would not surprise me. Each of the affidavits where these two
agents are involved is identical in layout, typeface, justification

of the margins and contents including a gross misspelling of the
address of the State Attorney
28
.
None of them bear any resemblance to documents that undoubtedly are
prepared by the attorneys as these are typed in a different
font,
with different margins and justification and a wholly different
layout, different for each attorney. The obvious explanation
is that
the attorney does not in fact prepare these affidavits at all and
they are prepared by the agent. That is significant
if these
attorneys are claiming in bills of costs for taking instructions and
preparing the affidavits. The same is true if the
notices of motion
are being prepared by the agent from a precedent.
[44] There is one other
curiosity in regard to the execution of the affidavits in all cases.
It is that whilst each affidavit
itself purports to be signed by
the applicant and a Commissioner of Oaths and each page of the
affidavit is initialled at the
foot by both the deponent and the
Commissioner of Oaths
29
the annexures to the affidavit are almost invariably not initialled
by either the applicant or the Commissioner of Oaths
30
.
That suggests to me that they may not have been attached to the
affidavit at the time it was sworn. All of this raises the

distinct possibility that what actually happens in these cases is
that a standard form affidavit is presented to the “client”,
who
signs it when first approached by the agent or attorney and that
thereafter arrangements are made for the affidavits to be
“attested
and commissioned”, the annexures are added and what appears to be
a complete affidavit is then given to the attorney
for the purpose
of preparing a notice of motion and filing the application with the
Court.
[45] Apart from the
question marks over the execution and attestation of these
affidavits I also came across cases where there
were other
disturbing features. In matter number 26 the applicant is reflected
as Njabulo Thabiso Mbatha, yet the signature and
initials are those
of one G B Mbatha. This applicant is only 16 years old. The
affidavit purports to be sworn in Pietermaritzburg,
but the
commissioner of oaths is an attorney practising in Westville, who
apparently carries his stamp with him against such
eventualities as
being required to act as a commissioner whilst away from the
office.
31
In matters number 38 and 51 the signatures and initials on the
affidavit are clearly by the same person. Both emanate from the
same
attorney. In matter number 16 the receipt attached to the founding
affidavit states explicitly that the identity document
was posted to
the applicant long before the date of the letter of demand. Neither
the letter nor the affidavit deals with this.
[46] To complete this
sorry litany of incompetence, slovenliness and disregard of
applicable law, I should briefly mention the
fact that, as pointed
out by the
amici
curiae
, in many
instances the notice of motion did not comply with the requirements
of rule 6. There were two principal problems.
Although the
applicants’ attorneys practised in and around Durban the
proceedings were all brought in Pietermaritzburg
32
.
However, the address for service given in the notice of motion in
each instance is the address of the Durban attorney rather
than that
of the correspondent attorney in Pietermaritzburg. There was
accordingly non-compliance with the requirements of
rule 6(5)(b).
Secondly, in a number of instances, whilst the notice of motion was
in accordance with form 2(a) either no date
was inserted for the
giving of notice of intention to oppose or no date was inserted in
the final paragraph to indicate when
the case would be heard if it
was not opposed. Apparently because of the difficulty of finding a
place on the motion roll for
these matters due to the number of such
cases being enrolled, the attorneys adopt the practice of simply
serving a notice of
set down once they obtain a date for hearing on
an unopposed basis. In some instances, as for example in Sibiya’s
case, that
notice of set down for hearing on the unopposed motion
roll was given prior to the expiry of the
dies
within which notice of intention to oppose could be given. Whilst
these may seem to be relatively minor problems, and they
certainly
pale into insignificance in relation to the difficulties with the
merits of the applications, they provide a further
indication of the
approach adopted to these applications. In cases where the State
Attorney delivered notices of intention to
oppose and notices in
terms of Rule 7(1) these were ignored and the cases were left on the
unopposed roll.
[47] Mr. Bofilatos, on behalf of the Department, made
the point that if one examines the time periods in many of these
cases they
suggest that the priority of the legal practitioners
involved (perhaps spurred on by the agents through whom most of them
were
obtaining this work) is simply to get to the stage as quickly
as possible where a set of application papers can be issued and
served on the State Attorney. The reason is obvious, namely that
once that occurs, the attorney can be reasonably assured that
in due
course an order for costs will be obtained and they will be paid.
A similar incentive would underpin the conduct of
the agents because
of the manner and circumstances in which they are to be remunerated.
This is something that I will deal
with in the latter stages of
this judgment. For now it is sufficient to say that on the face of
matters there was frequently
an unseemly rush on the part of the
attorneys to reach the stage where a set of application papers could
be issued. In the
process corners were cut, there was a lack of
investigation of the facts, elementary rules were disregarded and
defective application
papers issued and the entire process is
infected with an air of impropriety.
[48] Against this background I have considered whether
the cases in which Mr. Findlay appeared, where he sought leave to
supplement
the application papers, are sufficiently different from
those in the other cases before me to warrant the grant of that
indulgence.
In my view they are not. Not only are they all
fatally defective for the reasons already given but the source of
the attorney’s
work is Ubuntu Pension Services whose letters to
the Department are unhelpful, uninformative and in certain respects
misleading.
These are not the kind of matters that can be cured by
way of supplementary affidavits. The proper way to address them is

with a clean slate from the start.
[49] In the matters in which Mr. Nirghin appeared he
asked that matter number 30, where the incorrect papers are in the
file,
should be adjourned
sine die
. As it is unclear which
matter is in fact before me it seems preferable to strike the case
off the roll. In matter number
42 it emerged that the applicant had
received her identity document and he asked for leave to withdraw
the application with no
order as to costs. In matter 55 he
likewise asked for leave to withdraw the application on the basis
that the applicant is
an unassisted minor. As the applicant has in
any event according to the Department received the sought for
identity document
that seems a proper approach. That left only
matters 25 and 56 where, like Mr. Findlay, he asked for leave to
supplement the
papers. Again I have considered whether the papers
prepared by his instructing attorney, Mr. Voller, are sufficiently
differentiated
from the other applications to justify that
indulgence. In my view they are not. They are also based upon
letters from Ubuntu
Pension Services the defects in which cannot be
cured by way of a supplementary affidavit. In addition in these
applications
there is the curious feature that the notice of motion
in each instance is signed and dated before the founding affidavit
is
signed, although only issued out of the High Court after the
papers are complete. This merely gives a further indication of the

“production line” approach to these applications. In my view it
is not appropriate to grant leave to supplement the application

papers.
[50] In reaching these conclusions I have borne in mind
the probability that many of the applicants are poor and
disadvantaged
people, who may well have been the victims of an
unsympathetic bureaucracy. I have also borne in mind that the
Constitution specifically
protects the right of access to courts.
However the exercise of this right is still dependent upon an
applicant for relief establishing
their entitlement thereto. The
defects I have identified are defects of substance not procedure and
they have the result that
the acceptable evidence before me does not
suffice to establsih a
prima facie
case. Sympathy for the
applicants does not entitle a court to disregard this. I am sure
that some of them have not been well
treated by the Department in
their dealings with it. The fact that their true circumstances are
not before the court arises solely
from the failure, unwillingness
or inability of their attorneys to obtain proper instructions and
then to prepare a proper set
of application papers. The way in which
the cases are prepared suggests that the attorneys’ concern is
with their own remuneration
rather than the interests of their
clients.
[51] I have referred in the preceding portions of this
judgment to the information that I was able to ascertain by way of
accessing
publicly available websites intended to make that
information available. There is not the slightest indication that
the attorneys
have undertaken similar investigations on behalf of
their clients. Had they done so I would expect reference to the
results of
their research to appear in the affidavits. I have
referred to this material in this judgment, not as additional
evidence, but
to highlight the lack of research and consideration
that goes into the preparation of these cases. There is no
indication that
either the attorneys or the agents seek to follow by
these means the progress of their clients applications and the
correctness
of factual allegations in their affidavits. If their
purpose was to facilitate their clients obtaining identity documents
this
should be a first resort not something that is disregarded. One
would then expect letters of demand to be nuanced and to ask in

cases where it is said that the identity document is being printed
how much longer it will take before it becomes available for

collection. Where the website shows that the application has been
captured the enquiry could be directed at how long the process
of
consideration and production will take from there. However, this is
not done even though one would expect it to be the first
stage in a
process of seeking to help a client to obtain an identity document.
Litigation is not necessarily the best way in
which to obtain
bureaucratic efficiency. A courteous phone call is usually more
effective. The overall impression is that it
is not the procurement
of an identity document that matters but procuring an order for
costs payable from the public purse. Neither
sympathy for those who
have been ill-served by their lawyers nor the provisions of the
Constitution are such as to rescue the
present cases from their
deficiencies.
[52] That leaves as the penultimate matter to be
addressed in this judgment the issue raised by paragraphs 4 and 7 of
the directions
that I gave at the first hearing. In that regard I
have been furnished with affidavits by three agents, a Mr. Karl
Smith on
behalf of Magnavolt Trading and Siyathuthuka Advisers, Mr.
Barnabas-Joshua Jina on behalf of Ubuntu Pension Services CC and Mr

Mzwakhe Armstrong Mbuyazi on behalf of Horizon Pension Services.
I will deal with each in turn.
[53] Mr. Smith describes himself as a director of
Magnavolt Trading, which he claims is a community based
organisation. If that
is in fact correct it is odd for such an
organisation to choose a name that suggests it is a trading business
possibly active
in the electrical industry. He says that he was
previously employed as a manager by Siyathuthuka Advisers and that
when that
firm closed their offices in about October 2008 he
subsequently opened the office of Magnavolt Trading and used the
same postal
address. He does not identify who, other than himself,
was involved in the business of Siyathuthuka Advisers nor does he
explain
why it closed. As there are letters from Siyathuthuka
Advisers dated in October and letters from Magnavolt Trading dated
in
September there appears to be some overlap. The letters sent by
each are identical, save that under Maganvolt Trading the period

within which a resposne is demanded has been reduced from one month
to 14 days. One suspects that it is merely the same business

carried on under a different name. On the critical questions of
where and how they secure their clients and how they are remunerated

for their services his affidavit is extremely terse. The relevant
paragraphs read as follows:-
“
6.
Magnavolt Trading secures their clients via Councillors and the
constituents that they serve.
7.
Magnavolt Trading generates its income from the attorneys in respect
interpretation fees, transport costs, etc.”
The
three attorneys whose application papers included letters of demand
emanating from one of these two agencies are equally terse
in the
notice they signed. They say:-
“With regard to agents they assist in the interpretation, the
transportation of clients and similar services. The amounts
paid
to them are not recoverable in the bills of costs which are taxed
and these amounts are paid by the attorneys. The agents
are not
paid any amount for introducing clients or any fee of that nature.”
That
statement was signed by Mr. Clinton Short, Mr. Arif Mohamed and Ms
Ashieka Naidoo. In the same document they made it clear
that they
act on the basis that they will only be paid the amount of any bill
of costs taxed in a successful application and
they will not look to
the client for any further payment.
[54] Mr. Jina, on behalf of Ubuntu Pension Services CC
put up two affidavits, differing only slightly in their terms. He
says
that he obtains his clients mainly from rural areas as a result
of the relationships he has formed with traditional leaders such
as
chiefs and indunas or ward councillors. He says that he travels to
the required areas and obtains all the necessary details
from the
respective clients so as to enable him to formulate a letter to the
Department of Home Affairs. He explains he does
this because the
clients generally cannot afford to travel to Durban, cannot speak
English and are insufficiently educated to
formulate such a letter.
He does not charge for these services as in most cases it will be
an exercise in futility due to the
clients being impoverished. If
he receives no reply to his letter to the Department he refers the
matter to an attorney, usually
Ms. Oodit (who instructed Mr
Findlay), although in some of the cases before me he referred the
matters directly to her Pietermaritzburg
correspondent, Mr. Marco
Voller. In regard to remuneration he is very nearly as terse as Mr.
Smith, saying only that:-
“The attorney thereafter deals with the matter and if ultimately
successful the attorney reimburses me my expenses and pays
for any
translation services rendered as the attorneys concerned do not have
full time employees that are able to act as translators.”
Ms.
Oodit, in her response to my directive, said that she did not charge
any client anything in excess of what she could recover
for each
individual application by means of taxation on a party and party
basis of a bill of costs. She attached the bill of
costs to which I
have already referred in this judgment. After taxation it shows a
recovery of R4378,68. She then says:-
“Out of the amount received in payment of the taxed bill I pay
disbursements in accordance with the bill, including stamps,

Sheriff’s fees and Counsel’s fees. As there are no provisions
for the recovery of disbursements paid to translators and
the like,
I pay the expenses and translation services of whoever assists me in
the individual applications.”
Mr. Voller, in his affidavit, simply does not deal with
the financial relationship between him and the agents. He confines
himself
to saying that he pays counsel in accordance with certain
tariff guidelines within two weeks of presentation of a fee note.
[55] The third agent to put up an affidavit is Mr.
Mbuyazi on behalf of Horizon Pension Services. It is unnecessary to
deal with
his affidavit as it is a carbon copy of one of the
affidavits by Mr. Jina, surprising though that may seem.
[56] Two of the attorneys in matters before me, Mr. R.
Soodyall and Ms F. Karodia do not appear from their application
papers
to have matters referred to them by agencies. Ms. Karodia
filed no response to my directions. Mr. Soodyall, somewhat
surprisingly,
signed the same notice as had been signed by Messrs.
Short and Mohamed and Ms. Naidoo. There is accordingly nothing on
the
papers before me to indicate how either of these two attorneys
obtain their clients. It may be that they are so well known in
this
field of work that clients come to them unsolicited, but bearing in
mind the nature of the clients this seems slightly improbable.
It
may be that the clients are referred to them by agencies but they
prefer to write their own letters to the Department. It
may be that
they advertise in suitable media. Certainly there are attorneys who
do so in relation to this type of work. During
the course of
preparing this judgment one of my colleagues drew my attention to an
advertisement in a regional newspaper circulating
in the Durban area
involving another firm that is active in this field, although not in
any of the cases before me, and reading
as follows:-
“
PROBLEMS GETTING YOUR IDENTITY DOCUMENT?
(INGABE UNEZINKINGA NGOKUTHOLA UMAZISI WAKHO)?
We will help you get your Identity Document Quickly.
YOU DO NOT HAVE TO PAY.”
The advertisement continues in English and Zulu and
urges people to come and see the attorneys immediately, no
appointment being
necessary.
[57] I find the
relationship between the attorneys and the agents in the cases
before me troubling and Mr. Dickson submitted that
they should be
referred to the KwaZulu-Natal Law Society. It is perfectly plain
that the only reason that this work is being
undertaken is the
expectation that an order for costs will be obtained against the
Department of Home Affairs and that payment
to the attorney, counsel
and agent will be forthcoming from the public purse. This clearly
provides an incentive to rush into
litigation without adequate
enquiry and investigation.
33
Leaving that aside it seems to me that the answers furnished in
response to my directions about the payment of fees to the
agents by
the attorneys are deliberately opaque. No indication is given of
the basis upon which the agents compute their charges
for travelling
and translation work, much less the “etc.” of Mr. Smith’s
affidavit. It is unclear whether they are paid
a fixed fee in each
case or whether the fee varies from case to case depending upon what
work is done. There is, for example,
no reason to believe that
all of the applicants require translation services to communicate
the relatively simple facts of these
cases.
[58] It is said that translation services cannot be
taxed as a recoverable disbursement but I do not think that is
correct. If
translation services are required they are properly a
cost between party and party. That much is evidenced by the fact
that
item 2 in section D of the tariff in rule 70 is a fee payable
to the attorney for:-
“
Attending to arrange translation and thereafter to
procure same, per quarter of an hour or part thereof...”
Item 5 in section D reads:-
“Testimony : Fair and reasonable charges and expenses which in the
opinion of the taxing officer were duly incurred in the
procurement
of the evidence...”
That seems to cover translation services. Equally if
travelling costs have to be incurred to take an affidavit to a
client and
to have it sworn or for the attorney to travel to a place
where they can conveniently take instructions from their client,
these
are disbursements that can be recovered. Indeed not only are
disbursements recoverable for this but under item 11 of section A
in
rule 70 additional remuneration can be claimed for time spent
travelling.
[59] The explanation for not including the agents’
charges in the bills of costs presented for taxation does not appear
to be
well grounded. The bills are clearly prepared by people
familiar with the tariff. Were the position that proper accounts
had
been rendered for translation services and travelling on the
part of the agents one would have expected them to be included.

Their omission and the fact that no accounts have been put up in
support of these claims casts doubt upon the correctness of
what I
have been told in this regard.
[60] It is unnecessary
for me to canvass in any detail the relevant rules of the
KwaZulu-Natal Law Society. A payment to secure
work is a
fundamental breach of those rules falling under the general rubric
of touting. An agreement to pay a fee to a party
who refers work
to an attorney on a fixed basis is either touting or an
impermissible sharing of fees with the third party.
It is a serious
breach of the ethical rules governing the attorneys’ profession.
34
The fact that the payments are described by some other name can
make no difference if in truth and in fact they are paid for
the
purpose of procuring the work from or through the third party. Mr.
Dickson SC in his reply submitted that on these facts:-
“
The agents are paid from the proceeds of the
application on success.
Prima facie
this is a fee sharing
arrangement or an inducement to secure work.”
I agree with that submission and this judgment will be
referred to the KwaZulu-Natal Law Society for it to consider whether
the
payments made to agents by the firms of N.Oodit and Associates,
Clinton Short Attorneys, Arif Mohamed and Associates, Ashieka Naidoo

& Company and any such payments by Marco Voller Attorneys
constituted improper payments by the attorneys in that they were

either given to secure work improperly or constituted an improper
sharing of fees. The true position will no doubt be established

quite readily by an exercise of the Council’s powers of inspection
in terms of section 70(1) of the Attorneys Act 53 of 1979.
[61] Regrettably that is not my only concern in these
matters. I have drawn attention earlier in this judgment to the
basis
upon which bills of costs are prepared in these cases and
presented for taxation. For reasons already given I have
substantial
reservations as to whether the bills of costs presented
for taxation by these attorneys are in fact an accurate reflection
of
the work that they perform or whether they are, like the
application papers, prepared as a matter of rote in the knowledge
that
they will be agreed with the State Attorney. The ability of
the State Attorney to investigate and challenge the bills is limited

because, so I am told by Mr. Govender, the Registrar is in the
practice of setting down thirty, forty or fifty bills for taxation

on the same day and relying on the attorneys to settle on a figure.
Not only am I concerned whether the bills of costs being
presented
in these cases accurately the reflect the work done by the attorneys
but I am also concerned, bearing in mind the production
line manner
in which the papers in these cases are produced, whether it is
permissible or appropriate for the attorneys simply
to charge in
accordance with the tariff laid down in rule 70 or whether this
constitutes a form of over-reaching. I appreciate
that it is not
over-reaching of their own client because they are not charging
their clients fees. However, it seems to me equally
inappropriate
for an attorney to present a bill of costs for taxation to the
opposing side where the fees claimed are exorbitant
in relation to
the amount of work actually done and the nature of that work. That
is inconsistent with the bill being a party
and party bill. This
concern applies to all of the attorneys involved in these matters
and I will likewise forward my concerns
to the KwaZulu-Natal Law
Society for it to consider whether these are questions that ought to
be the subject of investigation
by it.
[62] Lastly, there is
the case of Mr. Soodyall who deliberately prepared and had sworn
affidavits that contain statements of fact
which he knew were not at
the time truthful. I asked Mr. Shaw QC whether Mr. Soodyall realised
that this was gravely improper
and his answer was : “He does now,
M’Lord”. Salutary though the admonitions of a counsel of Mr.
Shaw’s standing may
be I nonetheless think that this question
should also be referred to the KwaZulu-Natal Law Society. In
Incorporated Law
Society v Bevan
35
,
Innes CJ said:-
“Any practitioner who deliberately places before the Court, or
relies upon, a contention or a statement which he knows to be
false,
is in my opinion not fit to remain a member of the profession.”
That statement has
recently been endorsed by the Supreme Court of Appeal in
Van
der Berg v General Council of the Bar of South Africa
36
In deciding that this question too should be referred to the Law
Society I am mindful of the fact that in three of the nine
cases
involving Mr. Soodyall the applicants were minors
ex
facie
the
information in his possession and in all of the cases the letters
that he prepared and wrote to the Department are inconsistent
with
the affidavits in that they say that the applicants were told to
return in two months to collect their identity documents,
whilst the
affidavits say that the applicants were told that the identity
documents would be ready in three months. My overall
concern is
that he simply shows no regard at all for accuracy in the
preparation of affidavits.
[63] Finally it was suggested to me by Mr. Bofilatos
that it would be appropriate for me (obviously only after I had
obtained
the consent of the Judge President and referred the matter
to the other judges of this Division) to lay down a practice
directive
in this Division and in the Durban Court in relation to
matters of this type, along the lines of the practice directive set
out
in
Cele’s
case. To this end I have been furnished
with drafts of such a practice directive not only by Mr. Bofilatos,
but also by Mr.
Findlay SC and Mr. Shaw QC. After reflection I am
not satisfied that it is appropriate at this stage in regard to
these matters
to issue such a directive. It is plain that the
Department of Home Affairs is seeking to address the inefficiencies
that have
led to the present situation. I may say that nothing in
this judgment should be read as suggesting that the Department is a

model of efficiency or that the complaints about bureaucratic
incompetence on its part are unfounded. Mr. Bofilatos fairly
acknowledged
that such problems did exist although he claimed that
they are compounded by the approach adopted by the agencies and the
attorneys
in these matters. It seems clear that there is
inefficiency in the Department in dealing with these applications.
Were the
Department fully on top of the situation and keeping
careful and accurate records of every application as and when made,
there
should be very little difficulty in this age of computerised
technology in identifying the applications referred to in the
letters
of demand sent to it, within a very short time of receiving
those letters. That is so even if several hundred of such letters

are received daily. Entering the information from those letters
into a properly computerised system and generating a standardised

response depending upon where the application stood in the process
of obtaining an identity document should be relatively
straightforward.
It is the kind of activity that is undertaken all
over the world in bureaucratic institutions and the fact that the
Department
seems unable to do so or unwilling to make the effort is
not acceptable. That people, many of whom are poor, ill-educated
and
ill-equipped to deal with a bureaucracy, cannot find out by
simple resort to the regional offices of the Department what is
happening
to their applications for identity documents is
unacceptable. The situation should in practice never have to arise
where they
must have resort to agents and attorneys. The fact that
the agents and attorneys have been able to create the cottage
industry
of which I have already spoken is itself a condemnation of
the efficiency of the Department.
[64] Having said all that, however, it is plain that
the Department is trying to address the matter and there is some
force in
the criticism that the agents and attorneys are less
concerned with extracting an answer from the Department than they
are with
extracting an order for costs. It seems to me that before
any practice directive is issued it is desirable to see the nature
and extent of the problem that exists if the letters of demand sent
to the Department contain full information concerning the
applicant,
including the receipts and contact details, and any applications
that are thereafter brought set out in full the circumstances
of the
particular applicant. Only if the Courts then continue to be
inundated with these matters should consideration be given
to
putting in place a practice directive. That can then be done in the
light of a greater body of information than is at present
available
to me.
[65] In the result I make the following orders in the
following cases:-
Matters 15, 30 and 40 being the applications by T Ngubane
(13038/07), B.M. Dlamini (10546/08) and L.S. Sosiba (5460/08) are

struck off the roll, with no order as to costs.
In matters numbers 26, 42, 49 and 55 being the applications of N.T.
Mbatha (12393/08), T. Buthelezi (10537/08), S.P. Gasa (12445/08)

and N. Zulu (11910/08) the applicants are given leave to withdraw
the applications. There will be no order as to the costs
of the
applications.
In matters numbers 2, 3, 8, 17, 21, 27, 32, 33, 38 and 51 being the
applications of N Maphumulo (13838/08), N. Mkhize (13221/08),
N.
Ndlovu (11862/08),P. Barath (14808/08), B. Magcaba (14894/08), P.
Ngcawebi (11867/08), ), O. Melazi (14810/08), M. Cele
(13833/08),
N. Sisi (12535/08) and S Xolani (12485/08) the applications are
dismissed on the basis that the applicants do not
have
locus
standi in judicio
. There will be no order as to the costs of
these applications.
Each of the remaining applications, being the matters numbered 1,
4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 18, 19, 20, 22, 23,
24, 25,
28, 29, 31, 34, 35, 36, 37, 39, 41, 43, 44, 45, 46, 47, 48, 50,
52, 53, 54 and 56 being the matters of E. Sibiya (13859/08),
N.
Tshezi (13860/08), M. Cele (13217/08),C.Z. Nsindane (14808/08),
S.J. Khambule (14809/08),S. Zihlazi (11853/08), T.Z. Shoze

(12413/08), S.T. Ngomane (12422/08), Z.P. Sibiya (12559/08) T.G.
Mazibuko (12484/08), L. Sibeko (13044/08), M. Mpanza (5468/08),

G.L. Mbele (14035/08), T.M. Sithole (12473).T. Sokhulu (12363/08),
T.L. Nzuza (14811/08), M.J. Ngcobo (13121/08), M.W. Cele

(13108/08), P.E. Sibiya (11925/08), M. Mhlangu (13877/08), N.P.
Mhlongo (12450/08), T. Xaba (13834/08), S. Ndimande (14828/08),
K.
Ebrahim (14829/08), M.A. Funeka (11421/08),B. Ndabetolo (12549/08),
P.F. Mnqele (5464/08), D.Z. Doncabe (13223/07), D. Manqele

(11861/08), L. Mthembu (11857/08), N. Mazibuko (11822/08), B.C.
Phewa (12398/08), A.M. Gwala (12386/08), K. Maphumulo (10207/07),

T.B. Dlamini (12521/08), D. Zathu (13852/08), S. Mhlanga
(13837/08), N.P. Msomi (12482/08) and N.P. Shezi (11946/08) is

dismissed. There will be no order as to costs in each of these
applications.
[66] The Registrar of this Court is directed to send a copy of this
judgment to the KwaZulu-Natal Law Society and to draw their

attention to paragraphs 2 and 3 and 51 to 60 thereof, paragraph 61,
read with paragraphs 35 to 37 and paragraph 62 thereof.
DATE OF HEARING: 6 and 13 February 2009
DATE OF JUDGMENT : 18 March 2009
COUNSEL FOR APPLICANTS : MR. D.J. SHAW QC
1 - 9, 12 - 19, 21, 22, 27, 28, with him Mr. D.
Woodhaymal
31 - 41, 43 - 45, 48, 52-54
INSTRUCTED BY: CLINTON SHORT ATTORNEYS
(Matters number 3, 5,
8, 9, 14, 27, 43, 44, 45.)
ASHIEKA NAIDOO AND COMPANY
(Matters number 1,2,4, 28, 31, 33, 52, 53.)
ARIF MOHAMED AND ASSOCIATES
(Matters number 15, 16, 39, 40, 41, 48.)
R. SOODYALL
(Matters number 6, 7, 17, 18, 21, 22, 32, 34, 35)
FATHIMA KARODIA
(Matters number 12, 13, 19, 36, 37, 38, 50, 51,
54)
COUNSEL FOR APPLICANTS MR. A. FINDLAY SC
10, 11,20, 23, 24, 26, 29, 46, 47 AND 49 (with him
Mr. R. Ungerer)
INSTRUCTED BY: N. OODIT AND ASSOCIATES
COUNSEL FOR APPLICANTS 25, 30, MR. R. NIRGHIN
42, 55 AND 56
INSTRUCTED BY: MARCO VOLLER ATTORNEYS
RESPONDENTS’ COUNSEL MR. M. BOFILATOS
with him Ms. G. Kyriazis
RESPONDENTS’ ATTORNEY STATE ATTORNEY, PRETORIA
STATE ATTORNEY, DURBAN MR. K. GOVENDER (THE STATE
ATTORNEY)
With him Ms. M. Jonas and Ms N. Nkepu
AMICI CURIAE
MR. A. DICKSON SC AND MS. E.
BEZUIDENHOUT
1
2008 (7) BCLR 734
(D). In consequence of approaches to the Deputy
Judge President the practice directive will be reviewed by the Court
during a
hearing in March 2009.
2
In two cases there were no papers in the files and in the one
referred to in paragraph 6 of my directions I was informed that
the
papers in the file are the incorrect papers. This effectively
reduced the number of applications to be considered to 53.
3
The only significant difference lies with those attorneys who
themselves write letters of demand on behalf of clients where
no
agent is involved on the face of the papers. Even there in most
cases it is apparent from the typographical layout and wording
of
the affidavits that the attorneys have used the same draft affidavit
as every other attorney. This is clearly the precedent
on their
computers and they simply fill in the gaps. That is on the
assumption that the attorneys themselves prepare the affidavits
as
opposed to the agents through whom many of them obtain this work. I
suspect, at least in relation to matters emanating from
two agents
and three firms of attorneys, that the agent prepares the
affidavits. This seems to be the only reasonable explanation
why the
affidavits are identical, not just in their contents but in their
appearance, something which is explicable if they
come off the same
computer.
4
Supra,
paras. [43] to [45]
5
The
Promotion of Administrative Justice Act 3 of 2000
6
It appears that the Department’s official publication or hand
book containing the Act is printed with the original text of
section
25, overlooking the fact that it was amended in 2000.
7
Town Council of Springs v Moosa and Another
1929 AD 401
at
417;
Hoban v ABSA Bank Limited t/a United Bank and Others
1999 (2) SA 1036
(SCA), para. [18] approving the judgment in
Canca
v Mount Frere Municipality
1994 (2) SA 830
(Tk) at 832B-G.
8
See the definitions of “administrative action”, “decision”
(para. (g)) and “failure” in section 1 of PAJA.
9
President of the Republic of South Africa v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at para [135];
Pharmaceutical Manufacturers Association of SA and Another: In re
Ex parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para
[33]
.
10
Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para.
[25]
;
Minister of Health v New
Clicks SA (Pty) Ltd
2006 (3) SA 311
(CC) at para [95].
11
Sachs v Dönges NO
1950 (2) SA 265
(A) at 276E-F where
Watermeyer CJ described the grant of a passport as an administrative
act.
12
In para. [47]
13
I add this qualification because it is a fairly regular occurrence
in these cases to discover that the required identity document
was
issued but is awaiting collection or in default thereof has been
returned to the Department’s offices in Pretoria. This
is only
discovered when the State Attorney becomes involved and investigates
the matter. In my own preparation of this judgment
I checked on the
Department of Home Affairs website in the case of applicants for
whom I had an identity number and discovered
that in a number of
instances (12 out of the 22 where I had identity numbers) the
website reflects that the applicant’s identity
document has been
delivered to them. In 5 others it reflects that the identity
document is ready for collection. In 2 others
I was informed from
the Bar that the identity document had been received.
14
In the cases where Mr Soodyall is the attorney of record the
affidavits all make this standard allegation although in the letters

he wrote on behalf of the clients after he had procured that they
sign the affidavits he said that they had been told to return
in two
months to collect their identity documents.
15
Of the 53 applications 15 involved a late registration of birth.
16
A number of receipts do not reflect that any supporting documents
were put up in support of the application.
17
St Martin's Trust v Willowdene Landowners Ltd
1970 (3) SA (W)
at 135-136;
Willowdene Landowners (Pty) Ltd v St Martin's Trust
1971 (1) SA 302
(T) at 305G.
18
In
Premier Trading Co. (Pty) Limited and Another v Sporttopia
(Pty) Limited
2000 (3) SA 259
(SCA) at 270F the Court said that
certain affidavits “were rightly criticised... as being
suspiciously alike”.
19
The concept appears to be similar to that which underpins the
giving of notice to place a debtor
in mora
.
Nel v Cloete
1970 (1) SA 150
(A).
20
Van Straaten v President of the Republic of South Africa and Others
[2009] ZACC 2
, at para. [9].
21
I also bear in mind the standard allegation that everyone is told
that their identity document will be ready in three months
although
this is of doubtful worth.
22
According to the public statement by the Director-General mentioned
above there are at least ten thousand identity documents
awaiting
collection. In 4 of the cases before me the Department’s website
reflects that the identity document is ready for
collection.
23
There were in fact three cases emanating from this attorney where
the identity document had been received. These were the two
to which
Mr Findlay referred and one other in regard to which his attorney
had filed an affidavit arising from my querying the
fact that the
person concerned was a registered voter.
24
There were ultimately 11 registered voters amongst the applicants
in 53 cases. Only 4 people who gave identity numbers and were
old
enough to vote were not registered as voters and some of the
responses from the IEC website suggested that the problem might
be
that the numbers given in the receipts are incorrect. For the
remainder no identity number appeared on the receipt so it was
not
possible to check their status.
25
If as I suspect may be the case in certain instances the agents are
procuring the affidavits using a standard form the position
is if
anything worse, because it raises an additional and serious problem
in regard to the fee claims of the attorneys. Whilst
I would not
expect such agents to know how to prepare a proper affidavit the
attorneys are rendering bills of costs in which
they claim to have
taken instructions from the applicant and also usually claiming for
spending time in consultation over the
terms of the affidavit. If
they do not take instructions, prepare the affidavit or consult with
the client it is grossly improper
to claim a fee for doing so.
26
Notwithstanding the charge raised in both bills that I have seen
for the attorney’s attendance at court and, in the one, travelling

for that purpose
27
In Durban the Registrar informs me that she limits the number of
cases of this type to 10 a day and that she has set down cases
until
December 2009.
28
In the cases emanating from two of the attorneys, Clinton Short and
Arif Mahomed and Associates, the notices of motion also
appear to be
prepared on the same computer and with the same layout as the
affidavits. It is noticeable that this is not the
same as the font
and layout of, for example, the notices of set down, which are
clearly prepared by the attorneys.
29
Subject to one or two exceptions to which I will refer later where
the affidavit appears to be signed by someone other than
the
applicant and those I have mentioned where the initials appear to
have been inserted by someone else.
30
There are some cases where the receipt is initialled but none where
the letter of demand and proof of posting are initialled.
31
This attorney acted as commissioner of oaths in respect of at least
one other affidavit sworn in Pietrmaritzburg (Matter no
47).
32
No reason is given for adopting this more expensive mode of
procedure but I assume that it enables each attorney to have more

cases heard than would be the case if they confined their activities
to their local court.
33
This is plainly the case here as evidenced by the instances where
the identity documents had in fact been issued. It is also

evidenced by the failure to differentiate the cases and enquire into
such obvious matters as a note on the receipt that the identity

document had already been furnished or that a temporary identity
document had been furnished. It is also evident in the number
of
cases where litigation was commenced on behalf of minors even though
the attorneys knew their dates of birth. It is apparent
from the
cases where letters of demand were rushed out within a matter of a
few weeks of the application being made and the cases
where the
founding affidavits was deposed to prior to the letter of demand
being sent.
34
Law Society, Cape of Good Hope v Berrangé
2005 (5) SA
160
(C).
35
1908 TS 724
at 731-2
36
[2007] 2 All SA 499
(SCA) at paras. [16] and [17].