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[2019] ZASCA 46
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Director-General of the Department of Home Affairs and Others v De Saude Attorneys and Another (1211/2017) [2019] ZASCA 46; [2019] 2 All SA 665 (SCA) (29 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1211/2017
In
the matter between:
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
HOME
AFFAIRS FIRST
APPELLANT
THE
MINISTER OF HOME
AFFAIRS SECOND
APPELLANT
ACTING
CHIEF DIRECTOR: PERMITTING,
THE
DEPARTMENT OF HOME
AFFAIRS THIRD
APPELLANT
and
DE
SAUDE
ATTORNEYS FIRST
RESPONDENT
IMMIGRATION
MANAGEMENT SERVICES SA CC
t/a
VISA
ONE SECOND
RESPONDENT
Neutral
Citation:
DG
Department of Home Affairs v De Saude Attorneys
(1211/2017)
[2019] ZASCA 46
(29 March 2019)
Coram:
Navsa
AP, Majiedt and Makgoka JJA and Carelse and Matojane AJJA
Heard:
8 March
2019
Delivered:
29
March 2019
Summary:
Application
to compel the Department of Home Affairs to process applications and
appeals within the structure of the
Immigration Act 13 of 2002
and
the
South African Citizenship Act 88 of 1995
after prolonged delays –
Department unjustifiably challenging
locus
standi
of attorneys acting on behalf of affected individuals –
challenge to jurisdiction of court without merit –
institutional
dysfunction and failure to meet statutory and
constitutional obligations criticised.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Allie J sitting as court
of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Navsa
AP (Majiedt and Makgoka JJA and Carelse and Matojane AJJA concurring
):
[1]
This appeal is against an extensive order of the court below, the
Western Cape Division of the High Court, Cape Town, at the
instance
of De Saude Attorneys (De Saude), and Immigration Management Services
SA CC, a close corporation trading as Visa One (Visa
One), each of
which specialises in providing services to foreign nationals in
various applications made in terms of the Immigration
Act 13 of 2002
(the Act) and the Citizenship Act 88 of 1995 (the CA). They were the
first and second applicants, respectively,
in the application in the
court below. Before us, they were the first and second respondents,
respectively.
[2]
The application was directed at compelling the first to fifth
respondents in the court below, namely, the Director-General of
the
Department of Home Affairs, the Minister of Home Affairs, the
Director of Immigration Services: Western Cape, and the Acting
Chief
Director: Permitting of the Department of Home Affairs as well as VFS
Global (VFS), which acts on behalf of the department,
to make
decisions within set deadlines, on what was alleged to be 473 pending
applications submitted by De Saude and Visa One on
behalf of their
clients, in terms of the aforesaid legislation. De Saude and Visa One
sought, so they said, to compel the respondents
to comply with their
obligations in terms of the Constitution and the applicable
legislation. By the time the application was heard
by the court
below, the number of affected individuals - foreign nationals who
were clients of De Saude and Visa One - had reduced
to 323.
[3]
The order appealed against reads as follows:
‛
1.
The failure of unknown officials in the employ of the Respondents to
determine and deliver, within a reasonable and lawful time,
323
applications referred to in the lists attached to the applicants’
replying affidavit, more specifically in paragraph
103 of that
affidavit, is hereby reviewed and set aside, the said lists contain
the following applications;
1.1
14 applications for temporary
residence visas in terms of the
Immigration Act 13 of 2002
; - set out
in the list annexed to the replying affidavit as
SMDS1A
;
1.2
145 applications for internal
appeals, in terms of
section 8
of the
Immigration Act, of temporary
residence visa applications – set out in the list to the
replying affidavit as
SMDS2A
;
1.3
94 permanent residence permit
applications in terms of the
Immigration Act – set
out in the
list annexed to the replying affidavit as
SMDS3A
;
1.4
50 applications for internal
appeals, in terms of
section 8
of the
Immigration Act, of permanent
residence permit applications – set out in the list annexed to
the replying affidavit as
SMDS4A
;
1.5
5 applications for
authorisation to remain in South Africa in terms of
section 32(1)
of
the
Immigration Act – set
out in the list annexed to the
replying affidavit as
SMDS5A
;
1.6
2 applications for internal
appeals, in terms of
section 8
of the
Immigration Act, of application
for authorisation to remain in South Africa in terms of
section 32(1)
of the Immigration [Act] – set out in the list annexed to the
replying affidavit as
SMDS6A
;
1.7
5 for corrections of decisions
already received from the Respondents – set out in the list
annexed to the replying affidavit
as
SMDS7A
;
1.8
2 applications for
undesirability waiver applications in terms of
section 30(2)
of the
Immigration Act – set
out in the list annexed to the replying
affidavit as
SMDS8A
;
1.9
4 exemption applications
in terms of
section 31
of the
Immigration Act – set
out in the
list annexed to the replying affidavit as
SMDS9A
;
1.10
2 applications for citizenship
in terms of the Citizenship Act – set out in the list annexed
to the replying affidavit as
SMDS10A
.
2.
Respondents are directed to determine and deliver to the Applicants
the decisions on:
2.1
The applications in the lists attached to the replying affidavit as
SMDS1A, SMDS2A, SMDS5A, SMDS6A
and
SMDS7A
within thirty
(30) calendar days of the date of judgment; and
2.2
The applications listed in the lists attached to the Applicants’
replying affidavit as
SMDS3A
,
SMDS4A
,
SMDS8A
,
SMDS9A
and
SMDS10A
within sixty (60) calendar days of
the date of judgment;
3.
In the event that any of the overdue applications have been misplaced
by or are otherwise unavailable to the Respondents:
3.1
The respondents are directed to notify the Applicants in writing
within two (2) weeks of the date of judgment of which applications
have been misplaced;
3.2
The respondents are directed to take steps at their own expense to
copy misplaced applications from the offices of the Applicants,
at a
time that is reasonable and convenient for all parties but within two
(2) weeks of the date of notification referred to in
sub-paragraph
(1) above; and
3.3
First Respondent and all respondents who oppose the application are
directed to pay the Applicants’ costs, jointly and
severally,
the one paying the other to be absolved, such costs shall include
costs that stood over for later determination.’
[4]
With the leave of the court below, only the first three of the
erstwhile respondents appealed against that order. They are the
first, second and third appellants in this court. The detailed
background is set out below.
[5]
The facts that appear in the paragraphs that follow were set out in
the founding affidavit on behalf of the respondents by their
principal deponent, Ms Stefanie Maria De Saude. The appellants chose
not to engage on the asserted facts but to raise certain technical
points, which I will deal with in due course. What was asserted by Ms
De Saude appears alongside the applicable statutory provisions.
[6]
Section 10 of the Act provides for a range of temporary residence
permits, such as, study permits, business permits, staying
with a
relative, or retired persons permits. De Saude and Visa One, on
behalf of their clients, acting in terms of the Act, had
made 35
applications to the Department for temporary residence permits. By
the time the application was heard, there were 14 such
applications
outstanding.
[7]
Section 8(4) of the Act provides that an applicant aggrieved by a
decision contemplated in subsection (3) may, within 10 working
days
from receipt of the notification contemplated in subsection (3), make
an application in the prescribed manner to the Director-General
for
the review or appeal of that decision. On behalf of their clients, De
Saude and Visa One had lodged 185 internal appeals in
terms of s 8 of
the Act, related to the applications for temporary residence visas.
By the time the matter was heard by the court
below, the number of
appeals had reduced to 145.
[8]
Section 25(2) of the Act provides for one of two kinds of permanent
residence permits that might be issued by the Department.
There were
122 applications made on behalf of De Saude and Visa One’s
clients. This number had reduced to 94 by the time
it was heard by
the court below. The respondents lodged 74 appeals in respect of
decisions made concerning permanent residence
permit applications.
That number had reduced to 50 by the time the court below heard the
matter.
[9]
Section 32(1) of the Act provides as follows:
‘
Any
illegal foreigner shall depart, unless authorised by the
Director-General in the prescribed manner to remain in the Republic
pending his or her application for a status.’
There
were eight applications for authorisation to remain in South Africa
in terms of s 32(1) of the Act and two
internal
appeals lodged in relation to decisions related to such applications.
The number of applications for authorisation to
remain in South
Africa had reduced to five by the time the matter was heard. The two
internal appeals had still not been resolved.
[10]
Six applications were made for corrections of decisions made by the
Department. By the time of the hearing of the application
in the
court below that number had reduced to five.
[11]
Section 30(1) of the Act gives the Director-General the power to
declare categories of persons set out therein to be ‘undesirable’,
where after they would be disqualified from a port of entry visa, a
visa, admission into the Republic and from a permanent residence
permit. Section 30(2), however, gives the Minister the power, upon
application by an affected person, to waive any of the grounds
of
undesirability. There were 34 applications by affected persons for
undesirability waivers, in terms of s 30(2) of the Act. Only
two
applications were outstanding at the time of the hearing of the
matter.
[12]
Section 31 of the Act permits the Minister to grant foreign nationals
certain exemptions. Five such applications on behalf
of respondents’
clients were made and, finally, two applications for citizenship were
made in terms of the CA. There were
four outstanding applications for
exemptions by the time the matter was heard and the two applications
for citizenship in terms
of the CA.
[13]
According to the respondents the Department unreasonably delayed
making decisions in respect of what is set out in the preceding
paragraph, in some instances, for periods exceeding four years.
[14]
The following statement in the founding affidavit on behalf of the
respondents bears repeating:
ʽThe
problem that is the ultimate cause of this application is that the
Department has, for years now, failed at a structural
level to
determine applications made to it in any reasonable or lawful time
period, including but not limited to the 473 applications
that the
Applicants now bring before this Court. As shall be explained in
greater detail below, applications – even simple
applications –
to the Department can take years to be resolved, if they are resolved
at all.҆
[15]
The respondents insist that the present case is part of a repeated
pattern of how the Department deals with applications which
its
officials are constitutionally and statutorily obliged to determine.
In this regard they refer to an earlier decision of the
Western Cape
Division of the High Court in
Eisenberg & Associates &
others v Director-General, Department of Home Affairs & others
2012 (3) SA 508
(WCC) paras 73 and 86 where the following is
stated:
ʽDespite
the respondents’ protestations to the contrary, the inescapable
inference is that, irrespective of whether they
have the best will in
the world, they have dealt with the applications of the applicants’
various clients in a manner which
can only be described as
“administrative bungling”.
.
. .
However,
since I have found that the applicants’ version is inherently
credible and that the respondents' version is clearly
untenable, it
follows that I find that there are still 105 applications which have
not yet been determined by the respondents.
That is a significant
amount. This also means that the lives of 105 foreigners (excluding
their dependants who are also obviously
affected) hang in the balance
until the respondents get their house in order.’
[16]
The respondents claimed that the case referred to in the preceding
paragraph is but one instance of numerous cases of a similar
nature.
In relation thereto, they provided the following details:
‘
In
2011, [Visa One] V1 and an immigration firm then known as Eisenberg &
Associates (“
E&A”
)
launched the application that resulted in the Cloete AJ judgment
[
Eisenberg
& Associates & others v Director-General, Department of
Home Affairs & others
2012
(3) SA 508
(WCC)], which I referred to above. I myself was an
employee of E&A at the time.
The
Cloete AJ judgment concerned only temporary residence visas
applications under the
Immigration Act.
A
later, almost identical application by V1 and E&A concerned
permanent residence permit applications under the Act. This resulted
in an order by this Court, per Van Staden AJ, in favour of E&A
and against the Respondents on 18 May 2012 (
"the Van Staden
AJ order"
).
The
Respondents failed to comply with the Van Staden AJ order, resulting
in further urgent court action by V1 and E&A.
On
27 November 2012, this Court, per Savage AJ, handed down a judgment
which declared that the Respondents had failed to comply
with the Van
Staden AJ order and directed them to comply within two weeks. This
judgment –
Eisenberg & Associates and Others v the
Director-General: Department of Home Affairs and Others
(WCHC
10043/11)
[2012] ZAWCHC 191
– is unreported and I do not attach
to avoid overburdening these papers. If required, it can be made
available to this Court.
Subsequent
to the Cloete AJ judgment, other firms also began taking action.
For
example, in 2012 Intergate Immigration Services (Pty) Ltd
(
"Intergate"
) launched a case concerning about a
thousand delayed applications under case number 6078/2012 in this
Court.
Intergate
was granted an order against the Department by this Court, per
Saldanha J, on 8 August 2012, in terms whereof the Department
was
ordered to decide and deliver to Intergate decisions on over 800
applications.
The
Department failed to comply with that order, resulting in a further
urgent application by Intergate during November 2012, under
case
number 21022/12 in this Court.
On
28 November 2012, Cloete AJ (as she then was) found that the
Department had failed to comply with the court order granted by
Saldanha J. The Department [was] ordered to comply therewith on or
before 14 December 2012.
The
Department yet again failed to comply with that order, and eventually
after yet more litigation, the matter was finalized with
Respondents
being obliged to determine a final permit application before 23
August 2013.
The
structural inadequacies and inefficiencies that generated the first
backlog were never addressed, resulting in further litigation.
Intergate, for example, sought and obtained an order from this Court,
per Veldhuizen J, on 10 December 2014 that found,
inter alia
,
that the Respondents had failed to comply with its legal duties under
the
Immigration Act.
>
And
V1 and E&A (now known as Eisenberg de Saude, as I was then a
partner at the firm) launched yet another application against
the
Respondents, under case number 14705/14, to compel them to make
decisions on 977 overdue applications under,
inter alia
, the
Act.
On
13 November 2014, this Court, per McCurdie AJ, made an order:
Reviewing
and setting aside the failure of the Respondents to determine the
overdue applications; and
Ordering
the Respondents to determine and deliver decisions on the
applications within certain deadlines.
I
attach a copy of the McCurdie AJ order (
"the McCurdie AJ
Order"
) as
SMDS11
. The order sought in this court
application is substantially similar to the McCurdie AJ Order.
In
terms of that order, the Respondents were given 30 days to determine
and deliver decisions on temporary residence visa applications
and
appeals, and 60 days to determine and deliver permanent residence
applications and appeals.
The
Respondents failed to comply with that order.
Accordingly,
V1 and E&A returned to court, and on 27 February 2015, another
order, per Rogers J, was obtained against the Respondents.
This
order, too, was ignored, leading to yet another judgment by this
Court, per Rogers J (
Eisenberg de Saude and Others v
Director-General of the Department of Home Affairs and Others
[2015]
ZAWCHC 130 (15 September 2015)), in which he referred the failures of
the Respondents to oral evidence to determine if they
amounted to
contempt of court.
This
process is still on-going, partly because the Respondents failed to
comply with the orders made by Rogers J concerning the
discovery of
documents in preparation for the hearing of oral evidence.
On
4 April 2016, V1 launched its own application concerning 232
applications in terms of the
Immigration Act that
had been unlawfully
delayed.
On
20 June 2016, the Respondents (who were the same as the Respondents
in this matter) agreed and undertook that all of the overdue
applications would be finalised by 8 August 2016. I attach a copy of
the unsigned court order embodying this undertaking as
SMDS12
.
Once
again, the chronic delays of the Department meant that this order was
disobeyed.
The
overdue applications of V1 that are the subject of this application,
arose in large part while its previous court application
was still
being resolved. This is, I contend, a sad testament to how slow and
disorganised the Department is.
I
contend that this court application is on all fours with all of the
abovementioned matters and litigants who applied to this Court
to,
inter alia
,
compel the Respondents to make decisions on unlawfully delayed
applications.’
[17]
The respondents contended that prior to 2010, the Department
functioned smoothly and that immigration and citizenship law
practitioners, in the past, could usefully engage with the Department
to resolve any problems that might arise in relation to applications
made in terms of the legislation referred to above.
[18]
Problems arose in 2010. The Department moved all adjudicative
functions to Pretoria. Previously, applications and processes
lodged
in Cape Town in the categories referred to above were decided in Cape
Town. The move to Pretoria caused a number of logistical
problems.
Whatever documents emanated from the decision were couriered through
from the decision-makers in Pretoria to Cape Town.
If documents did
not arrive in time, it caused problems for affected persons who, in
the event that they had a decision in their
favour were not in a
position to produce proof thereof, placing them in peril. In the
event of a rejection of an application, one
is required to be
informed in order to lodge an appeal within the prescribed period.
Given the problems that have since crept in,
affected persons are in
danger of not being able to comply with the provisions of the
legislation in question and are in danger
of arrest.
[19]
In many instances, after a decision had been made the outcome was
never delivered. Insofar as an applicant or affected person
is
concerned the application is delayed. The respondents alleged that
there are many employees of the Department who are under-skilled,
inefficient, uncaring and who abuse the administrative powers
entrusted to them.
[20]
The appointment of VFS as a service provider has been of no
assistance. The adjudication process, and hence the delays, are
within the Department’s area of jurisdiction and thus its
responsibility. The respondents stated that they tried, for a
prolonged period of time, to engage with the Department to have the
aforesaid problems addressed, but to no avail. The respondents
supplied details of the efforts made by them:
(a)
Representatives of De Saude and Visa One regularly attended
physically at the Department's regional offices, located at Barrack
Street, Cape Town, as well as at the office of VFS in Cape Town, and
engaged with the staff there.
(b)
They visited the Department’s website. Unfortunately, the
website seldom worked: reference numbers that were inserted
by the De
Saude and Visa One in the required e-mail field, when entered,
yielded no results.
(c)
Attempts to call the Cape Town office of the Department usually
failed. There was generally no reply. If there was a reply,
one was
directed to the aforesaid website.
(d)
The nationwide call centre of the Department was totally useless.
Even if one got through to an agent, the agent would always
request
to be sent a power of attorney, before further information could be
released. There would then be no reply to such email.
If one called
again, one would get a different agent who would make the same
request. This was where it ended.
The
respondents emphasise that they were left with no choice but to
approach the court for an order in the terms set out above.
[21]
According to the respondents the introduction of VFS, far from
facilitating the process, in fact impeded matters by creating
a
further bureaucratic barrier when one sought to engage the
Department. Any query directed at VFS was met with a standard
response
that the matter had been forwarded to the Department.
[22]
The respondents provided examples of the devastating effect of the
delays occasioned by the Department’s inaction. First,
they
point to the case of Ms Louise Batty, an Australian nurse, who has
qualifications in Health Education and Promotion, Palliative
Care and
Community Outreach, and Psychiatric Nursing. She has a Masters degree
in Primary Health Care.
[23]
Ms Batty has been in South Africa since 2003, working with
disadvantaged children in the Limpopo Province. She started a
non-governmental
charity called ‘Keep The Dream’. An
application in terms of s 19(4) of the Act
[1]
was made by Ms Batty on 4 May 2015 for a critical skills visa, so
that she could become the managing director of Keep The Dream
and
continue with the development of the organisation. The application
was declined on 9 July 2015. Ms Batty lodged an internal
appeal on 22
July 2015. Despite the passage of over 15 months, no decision had
been received from the respondents.
[24]
The Department’s failure to deal with the appeal has led to
immense hardship. Ms Batty’s existing visa expired
while she
was awaiting an outcome. If she left South Africa, the charity she
had spent more than a decade building, to help the
poorest and most
vulnerable members of South African society, would collapse. She
would also be declared undesirable, and barred
from returning to
South Africa. But because she has no visa, she cannot work. And she
is constantly at risk of detention and deportation.
[25]
Ms Batty’s parents, who are octogenarians, are unwell in
Australia. She desperately needs a visa to be prepared for the
very
real possibility that one of them will become seriously unwell. The
delay by the appellants risk making her choose between
her life's
work in helping poor South African children, and being with her
parents in the last stages of their lives. This is a
cruel and awful
position to be placed in.
[26]
The following part of an e-mail by Ms Batty to De Saude sets out an
immediate problem caused by the expiry of her existing
visa and the
failure of the Department to act:
'My
business accounts have all been frozen. I cannot operate them at all
and its payday for all the staff tomorrow. I am concerned
as most of
my staff live from pay to pay. Please as a matter of urgency, PLEASE
send the bank letter addressed to FNB regarding
my work permit. I was
given no notice. I find out tomorrow during banking hours what the
deal is however we have never had this
issue.'
[27]
The second example provided by the respondents is the case of Mr
Dzorai Nzembe, a Zimbabwean national, who fled to South Africa
in
2005 and obtained a work permit. Through hard work he went from being
a casual labourer on a farm to being a senior manager,
a member of
the South African Institute of Managers, and vital to the success of
the farm as a whole.
[28]
On 23 October 2014 Mr Nzembe applied for a critical skills visa based
on being a corporate general manager. His application
was rejected on
4 December 2014. On 9 December he appealed that decision. No decision
has yet been made.
[29]
Like Ms Batty, Mr Nzembe’s present visa has expired. Without it
he cannot work here nor leave. He is constantly at risk
of being
arrested, detained and deported. He has two children, who were born
on the farm at which he worked, and a wife. He was
the primary
breadwinner, and the family is struggling without his income. He
cannot afford the school fees for his eldest son,
and his youngest
son has been diagnosed with cerebral palsy and requires specialist
care.
[30]
In addition, the respondents complain that their livelihood and that
of their employees are threatened as they are unable to
achieve any
results for the people who approach them for assistance.
[31]
The respondents accept that time should be allowed for the processing
of applications and appeals, but are emphatic that the
Constitution
and the legislation under which the Department operates do not
countenance the degrees of inaction and delay that
their clients have
been subjected to and the personal hardships caused thereby. They
accept that permanent residence and citizenship
applications could
take up to eight months to process. Applications to have corrections
made, on the other hand, so they contend,
should take no longer than
one month. Other applications and appeals under the two Acts referred
to above, they submitted, should
not take longer than two to three
months to finalise.
[32]
The applications and appeals brought by the respondents’
clients have been delayed, in many instances by a number of
years.
The delays in all of them are way beyond reasonable periods. As
pointed out by the respondents, immigration and visa status
affects
every aspect of a person’s life, from the right to conduct a
bank account to housing, employment, study and business
opportunities.
[33]
De Saude and Visa One contended that it was the precarious position
they and their clients found themselves in and the failure,
despite
their best efforts, to productively engage with Departmental
officials, that compelled them to approach the court below
for relief
on an urgent basis.
[34]
The appellants’ response to the application was not to
challenge the facts set out above but, at the outset, to challenge
the
locus standi
of the respondents. The appellants adopted the position that De Saude
and Visa One’s failure to join the 473 individuals
who were
their clients as parties to the litigation was fatal. They insisted
that the application could not be said to be in the
public interest
and could not be labelled a class action. The appellants, in their
answering affidavits, also relied on the fact
that the alleged 473
clients had not filed powers of attorney in favour of the
respondents. They were adamant that the respondents,
who are
corporate entities, ought to have presented resolutions indicating
that the litigation was authorised. It is necessary
to note that
there were two supporting affidavits filed by affected individuals,
namely, Ms Batty and Mr Nzembe. The appellants
also challenged the
jurisdiction of the court below. They contended that since
adjudicative functions were carried out in Pretoria
and the statutory
decision makers and supervisory officials were located there, the
court below had no jurisdiction to hear the
matter.
[35]
In addition, the appellants adopted the position that this was a case
of misjoinder, in that the different cases presented
cumulatively,
each turned on different facts and that the 473 individuals, who are
geographically scattered, should not have joined
together in the
single application in the court below. In this regard it was pointed
out by the appellants that, for instance,
some of the applications
were submitted in other countries, apparently by foreign nationals.
Insofar as the applications for corrections
are concerned, the
appellants took the view that there are no outstanding decisions.
They complained about the lack of particularity
by the respondents in
relation to the applications for corrections. They state that the
precise nature of the corrections sought
by the respondents’
clients were not disclosed. I interpose to record that the
respondents did provide the names of individuals
who were affected by
the appellants’ inaction and provided the categories under
which their applications or appeals resorted.
As explained above, the
appellants deliberately elected not to engage with the detailed
factual averments by the respondents.
[36]
In the respondents' replying affidavit they explained that the
clients whom they represented in the application were without
the
financial means and did not have the resources to bring individual
applications to vindicate their rights.
[37]
The application brought by the respondents in the court below was
heard by Allie J. In relation to the question of jurisdiction,
she
had regard to the submission on behalf of the appellants, that in
terms of s 6(1) of the Promotion of Administrative Justice
Act 3 of
2000 (PAJA), read with the definition of ‘court’
[2]
in that legislation, there were only 4 grounds on which a court would
have jurisdiction and that those grounds were lacking, in
respect of
the application before the court. The following, in terms of that
legislation, are the bases for the exercise of jurisdiction
by a
competent court:
'10.1
The court in whose jurisdiction the administrative action occurred;
10.2
The court in whose principal place of business/administration is
within its jurisdiction;
10.3
The court where the adversely affected party is domiciled;
10.4
The court where adverse effect of the administrative action will be
experienced.'
The
appellants contended that the effects of the administrative action
(the lack of a decision) was experienced by affected individuals
and
not by De Saude and Visa One. Their clients were scattered all over
the country and, perhaps, beyond our borders and were thus
not
domiciled within the area of the court’s jurisdiction and
consequently the court below did not have jurisdiction.
[38]
Allie J also considered the provisions of
s 21(2)
of the
Superior
Courts Act 10 of 2013
, which read as follows:
'A
Division also has jurisdiction over any person residing or being
outside its area of jurisdiction who is joined as a party to
any
cause in relation to which such court has jurisdiction or who in
terms of a third party notice becomes a party to such a cause,
if the
said person resides or is within the area of jurisdiction of any
other Division.'
[39]
The court below took into account that the respondents were resident
in and practised within the court’s area of jurisdiction
and
that the Minister had a principal place of business within that area
and reasoned that the other officials who operated outside
of the
court’s area of jurisdiction were therefore rightly joined by
the respondents. Thus, she concluded the court below
had jurisdiction
to hear the matter.
[40]
On the question of
locus standi
, the court below expressed
itself as follows:
'Applicants
provided a ground for
locus standi
in the founding affidavit,
namely, that their practices, consequently their livelihood and that
of their employees are affected
by their inability to compel a
response from Respondents. The argument that litigation would be more
remunerative for applicants
fails to take account of the financial
means of applicants' clients and amounts to litigation-baiting.
When
respondents in their answering affidavit, challenged the basis for
locus standi
,
applicants elaborated on the connection between the decisions not
taken by respondents for unreasonable periods of time and the
adverse
effect thereof on their clients and why they have
local
standi
to bring the
application on behalf of their clients as well, who clearly don't
have the resources to bring it themselves.'
[41]
With reference to the decision in
Kruger v President of the
Republic of South Africa & others
[2008] ZACC 17
;
2009 (1) SA
417
(CC) paras 23 and 25, the court below said the following:
'In
Kruger the court, correctly in my view, said at paragraph 22 that
section 38
introduced a radical departure from the common law
concerning
locus standi
because it expands the persons with
standing beyond a direct and substantial interest and now includes
people who act on behalf
of people who can't act or on behalf of
public interest in general.
Section
38
is consonant with the provisions of
section 6(1)
of PAJA which
provides that any person may bring an application under that Act.
The
purpose of PAJA is to ensure that just and fair administrative action
occurs. A failure to give a decision over an unduly prolonged
period
of time constitutes unfair administrative action. It is in the
interests of justice that respondents be put to terms to
take their
decisions within a reasonable period of time.'
[42]
Allie J found that the respondents, as immigration law specialist
practitioners who service clients affected by legislation
in that
area, must be considered to have a real and substantial interest in
ensuring that statutory functionaries fulfil their
statutory duties
when dealing with the different categories of individuals who submit
matters for adjudication under the statutory
regime. The court below
went on to say the following:
‘
When
the Department fails to deliver decisions within periods in excess of
7 years, and when further engagement by applicants with
the
Department become[s] circular in nature as alleged in the founding
affidavits, the applicants have a real interest in ensuring
that they
can fulfil their legal and ethical duty to represent their clients'
interests.'
Consequently
Allie J held that the respondents had
locus
standi
to bring the application.
[43]
The court below dealt summarily with the misjoinder point raised by
the appellants. It said the following:
'I
am of the view, that in the absence of allegations by the respondent
concerning alleged different grounds upon which the respondents
may
withhold decisions for an indeterminate period of time, the facts and
law upon which the relief sought rests are substantially
the same.
Respondents
have failed to address the substantial allegations in the founding
affidavit concerning the applicants' clients, who
are listed as such
in the last column of the lists annexed to the founding affidavit. In
particular, respondents have not taken
issue with the allegation that
applicants and consequently their clients are entitled to a decision
being made in each of their
applications to the Department nor with
the timeframes proposed by applicants, within which the decisions
should be taken and the
method of communication of those decisions
proposed by applicants.'
Allie
J went on to make the order set out at the commencement of this
judgment. It is against the abovementioned conclusions and
the order
that the present appeal is directed.
[44]
We were taken aback at the stance adopted by the appellants. They
clearly took the view that they are entitled not to account
to this
court or to the public at large for their failure to fulfil their
constitutional and statutory obligations. They have left
unchallenged, extremely serious assertions about their repeated and
abysmal failure to process applications that the constitutional
scheme and statutory regime demand. Their silence speaks volumes of
prolonged institutional dysfunction as claimed by De Saude
and Visa
One. They limit themselves to technical challenges, asserting that
they, like other litigants, are entitled to rely on
technical
defences. When we enquired of counsel representing the appellants
whether he had been instructed to continue to persist
in this stance
or whether he had advised this course, he was emphatic that he and
the State Attorney were acting on instructions.
The attitude revealed
by the appellants is thus all the more perplexing. It is necessary,
however, to reveal that at the outset
of proceedings before us,
counsel on behalf of the appellants informed the court that the
Department was overwhelmed by logistical
challenges, the implication
being that the bureaucratic machinery is unable to cope with
incessant demands and that this dictated
the inaction complained of
by the respondents.
[45]
If, after the application had been launched in the court below, the
Department had provided the respondents with a reasonable
timeframe
within which they would process the applications in question, the
respondents would no doubt have been constrained to
accede thereto.
Indeed, if that option had been suggested at the beginning of
proceedings in the court below, that court would
have been hard
pressed not to afford the Department such an indulgence. The
appellants instead chose a more obstructive path.
[46]
This court has in the past recorded its appreciation for the
difficulties faced by the Department. In
Rahim
& others v Minister of Home Affairs
2015
(4) SA 433
(SCA) para 2, this court recognised that South Africa has
kilometre upon kilometre of porous borders which the Department has
to
control. It noted the obvious concern by citizens about the
unregulated entry of foreign nationals as well as the obligation by
the State to ensure that in dealing with foreign nationals we
maintain and promote constitutional norms. Those twin concerns
endure.
[47]
Before commenting finally on the conduct of the Department and the
attitude of the appellants in relation to the application
brought by
De Saude and Visa One, it is necessary to consider whether there is
merit to any of the technical defences on which
they relied. First,
there is the question of whether the respondents had
locus standi
.
The Constitution is the starting point. Section 38 of the
Constitution provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are -
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another
person who cannot act in their own name;
(c)
anyone acting as a member of, or in
the interest of, a group or class of persons;
(d)
anyone acting in the public interest;
and
(e)
an association acting in the interest
of its members.’
[48]
In
Freedom Under Law v Acting Chairperson: Judicial Service
Commission & others
[2011] ZASCA 59
;
2011 (3) SA 549
(SCA)
para 19 this court noted that the Constitutional Court has repeatedly
stressed that a broad approach to standing should be
adopted. This
approach should apply not only to instances in which constitutional
rights were asserted, but also when there was
a complaint about an
infringement of rights other than those protected in the Bill of
Rights. In
Ferreira v Levin NO & others; Vryenhoek &
others v Powell NO & others
1996 (1) SA 984
(CC) para 165,
Chaskalson P said the following in relation to the question of
standing in constitutional matters:
‘
.
. .I can see no good reason for adopting a narrow approach to the
issue of standing in constitutional cases. On the contrary,
it is my
view that we should rather adopt a broad approach to standing. This
would be consistent with the mandate given to this
Court to uphold
the Constitution and would serve to ensure that constitutional rights
enjoy the full measure of the protection
to which they are entitled.’
[49]
In
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
[2012] ZASCA 15
;
2012 (3) SA 486
(SCA), this court had occasion to
consider the development of our law from a repressive past to present
day. It recorded that during
the time of an oppressive regime,
lawyers had to fight for space in order to challenge and limit human
rights abuses. Even then
our courts, in cases crying out for justice,
were willing to adopt a liberal approach to standing.
[3]
[50]
In
Ferreira
, para 166, Chaskalson P said the following:
‘
Although
corporations do not have rights under the Canadian Charter and cannot
institute Charter challenges in their own behalf,
they can challenge
the constitutionality of a statutory provision at a criminal trial on
the grounds that it infringes the rights
of human beings and is
accordingly invalid. Where, as in the present case, the impugned
section of the Companies Act has a direct
bearing on the applicants’
common-law rights, and non-compliance with the section has possible
criminal consequences, they
have sufficient standing in my view to
secure a declaration from this Court as to the constitutionality of
the section.’
[51]
O’Regan J, in
Ferreira
, explained why a generous and
expanded approach to standing is necessary in constitutional
litigation. At para 229, she said the
following:
‘
Existing
common-law rules of standing have often developed in the context of
private litigation. As a general rule, private litigation
is
concerned with the determination of a dispute between two
individuals, in which relief will be specific and, often,
retrospective,
in that it applies to a set of past events. Such
litigation will generally not directly affect people who are not
parties to the
litigation. In such cases, the plaintiff is both the
victim of the harm and the beneficiary of the relief. In litigation
of a public
character, however, that
nexus
is rarely so intimate. The
relief sought is generally forward-looking and general in its
application, so that it may directly affect
a wide range of people.
In addition, the harm alleged may often be quite diffuse or
amorphous. Of course, these categories are
ideal types: no bright
line can be drawn between private litigation and litigation of a
public or constitutional nature. Not all
non-constitutional
litigation is private in nature. Nor can it be said that all
constitutional challenges involve litigation of
a purely public
character: a challenge to a particular administrative act or decision
may be of a private rather than a public
character. But it is clear
that in litigation of a public character, different considerations
may be appropriate to determine who
should have standing to launch
litigation.’
[52]
In
Kruger
, para 25, the Constitutional Court held, in relation
to the standing of an attorney to challenge the constitutionality of
certain
proclamations:
‘
As
an attorney in a specialist personal injury legal firm who works
regularly in this field, Mr Kruger has a direct and professional
interest in the validity of the proclamations. A legal practitioner
is an officer of the court. Where the practitioner can establish
both
that a proclamation is of direct and central importance to the field
in which he or she operates, and that it is in the interests
of the
administration of justice that the validity of that proclamation be
determined by a court, that practitioner may approach
a court to
challenge the validity of such a proclamation. In this case Mr Kruger
has shown that he is a personal injury attorney
and that the validity
of the proclamations is of central importance to his field of
practice. Moreover, he has established that
significant legal
uncertainty has arisen because of the contents of the First
Proclamation and the publication of the Second Proclamation.
The
effect of this uncertainty is clearly adverse to the proper
administration of justice. A personal injury attorney must be able
to
understand and engage with the legislative scheme on which he or she
and his or her clients rely in order to seek compensation.
The
uncertainty created by the issue of the two proclamations and their
effect on Mr Kruger’s ability to manage his clients’
affairs are reason enough to grant standing to the applicant.’
[53]
Kruger
did, however, sound the following caution, at para 26:
‘
In
recognising the applicant’s standing in this case, I emphasise
that it arises because of the need for legal certainty and
the
administration of justice. Legal practitioners must not assume that
they will be allowed to bring applications to this court
for a
declaration of invalidity based purely on financial self-interest or
in circumstances where they cannot show that it will
be in the
interest of the administration of justice that they do so.’
[54]
In
Kruger
, para 27, the following question was left undecided:
‘
It
is not necessary, given this conclusion, to decide whether a
litigant, when raising a constitutional challenge not based on Ch
2
of the Constitution, is entitled to act in the public interest. That
question can stand over for another day.’
[55]
It is true that the replying affidavit on behalf of De Saude and Visa
One, misguidedly, as accepted by counsel on their behalf
who admitted
that he had settled the affidavit, conceded that the application was
not brought in the public interest. However,
it is clear from the
founding and replying affidavits that the applicants whose
livelihoods were threatened, seeing that they practise
mainly in the
field of immigration and citizenship law, were bringing the
application in their own interest, but they asserted
emphatically
that their clients’ constitutional rights were being infringed,
inter
alia
,
their right to administrative justice due to systemic failure. One
also has to take into account that they claimed, without challenge,
that their clients were liable to arrest and/or summary deportation
and were subjected to hardships as a result of departmental
inertia.
They also asserted, again without contradiction, that, having regard
to Ms Batty’s position, that poor and vulnerable
children were
prejudiced. It was also clear from what they said about their
clients, that their unresolved status in the country,
compellingly
leads to financial difficulties. In Ms Batty’s case, with her
status in the country being in limbo, her NGO’s
business
accounts were all frozen and she was unable to pay staff. In Mr
Nzembe’s case, he was unable to continue earning
a salary. Why,
one might rightly ask, would any of the other clients that De Saude
and Visa One represent, not find themselves
in similar positions. The
respondents complained, generally, of large scale institutional
dysfunction and that went unanswered.
[56]
In
Eisenberg & Associates & others v Director-General,
Department of Home Affairs & others
2012 (3) SA 508
(WCC),
para 74-75, the court, dealing with the statutory duties of officials
of the Department said the following:
‘
As
I have mentioned above, the respondents are the officials in the DHA
who, generally speaking, administer the immigration regime
in South
Africa in terms of the Act and regulations pursuant thereto. One of
the most important components of this regime is the
lawful and
efficient provision of temporary residence permits to foreigners who
wish, for whatever reason, to enter and sojourn
in South Africa.
For
a foreigner in South Africa these permits are the single most
important documents that they can possess. It is the basis of
their
legal existence in this country. Every aspect of their lives –
the ability to travel freely (s 21 of the Constitution);
the ability
to work and put food on the table for their families (a component of
the right to dignity in s 10 of the Constitution,
see
Minister
of Home Affairs & others v Watchenuka & another
2004 (4) SA 326
(SCA)
(2004 (2) BCLR 120)
at 339B-C, 339F-G and
340G); the ability to keep their children in school (ss28 and 29 of
the Constitution); and the basic right
to liberty (s 21(1) of the
Constitution) – is dependent on the physical possession of a
valid permit.’
[57]
De Saude and Visa One rightly stressed that the appellants have
statutory and constitutional obligations which they failed
to fulfil
and with justification pointed to material parts of the preamble of
the
Immigration Act which
reads as follows:
‘
In
providing for the regulation of admission of foreigners to, their
residence in, and their departure from the Republic and for
matter
connected therewith, the
Immigration Act aims
at setting in place a
new system of immigration control which ensures that –
(a)
visas and permanent residence permits are issued as expeditiously as
possible and on the basis of simplified procedures and
objective,
predictable and reasonable requirements and criteria, and without
consuming excessive administrative capacity
;
(b)
security considerations are
fully satisfied and the State retains control over the immigration of
foreigners to the Republic;
(c)
interdepartmental coordination and
public consultations enrich the management of immigration;
(d)
economic growth is promoted through the employment of needed foreign
labour, foreign investment is facilitated, the entry of
exceptionally
skilled or qualified people is enabled, skilled human resources are
increased, academic exchanges within the Southern
African Development
Community is facilitated and tourism is promoted
;
(e)
the role of the Republic in the
continent and the region is recognised;
(f)
the entry and departure of all persons
at ports of entry are efficiently facilitated, administered and
managed;
(g)
immigration laws are efficiently and effectively enforced, deploying
to this end significant administrative capacity of the
Department of
Home Affairs, thereby reducing the pull factors of illegal
immigration
;
(h)
the South African economy may have access at all times to the full
measure of needed contributions by foreigners.’
(My
emphasis.)
[58]
The contention on behalf of the appellants that the respondents acted
purely in their own financial interest, is without foundation.
The
respondents painted a picture of prolonged and enduring departmental
dysfunction. The livelihood of the respondents and their
employees is
clearly at stake, but, their clients and others in similar situations
as well as the South African public at large,
have an interest in the
proper administration of the Act and the CA. Indeed, courts have a
mandate to uphold the Constitution and
to see to it in cases properly
before them, that administrative functionaries do their duty and
fulfil their statutory and constitutional
obligations. In the present
case, De Saude and Visa One have shown, not only that their own
interests are affected, but have demonstrated
institutional
dysfunction and that the broader public interest, including the
interest of their clients were implicated.
[4]
The issues raised are vital to the proper administration of justice.
The Act was designed and indicated by its preamble to ensure
expedition in the issuing of visas and permanent residence permits.
What we have, instead, is sloth on a grand scale.
[59]
In
Democratic
Alliance v President of the Republic of South Africa & others
2012
(1) SA 417 (SCA),
[5]
this court
had cause to embark on an extensive examination of the constitutional
scheme. The starting point was the founding provisions
of the
Constitution. Section 1
(c)
emphasises that ours is a democratic State founded, among other
values, on the supremacy of the Constitution and the rule of law.
Section 1
(d)
commits
government to democracy, accountability, responsiveness and openness.
Section 2 reaffirms that the Constitution is the supreme
law and that
law or conduct that is inconsistent with it is invalid and that the
obligations imposed by the Constitution must be
fulfilled. In para 57
of that case this court stated the following:
‘
[E]very
citizen and every arm of government ought rightly to be concerned
about constitutionalism and its preservation.’
In
para 68, the following appears:
‘
Importantly,
organs of State, through legislative and other measures, must assist
and protect the courts to ensure their independence,
impartiality,
dignity, accessibility and effectiveness.’
In
para 70 the following is said:
‘
[T]he
same theme that suffuses all the other chapters of the Constitution .
. . namely that institutions of State integral to the
wellbeing of a
functioning democracy have to be above reproach, have to be
independent and have to serve the people without fear,
favour or
prejudice.’
[60]
As stated in
Gauteng
Gambling Board & another v MEC for Economic Development, Gauteng
[2013] ZASCA 67
;
2013 (5) SA 24
(SCA), para 52, our present
constitutional order requires that the State be a model of
compliance. It has a duty not to frustrate
the enforcement by courts
of constitutional rights. In my view, De Saude and Visa One clearly
had standing to bring the application.
The defence of a lack of
standing on the part of the respondents is entirely without merit.
[61]
The appellants’ reliance on misjoinder is also without merit.
It beggars belief that the Department adopted the position
that it
was not shown that there was commonality in relation to the law and
facts in respect of the cases of each of the respondents’
clients. Was the Department seriously inviting each of the clients to
launch a separate application with concomitant costs for
which the
taxpayer has to bear the burden? The complaint in each case and
overall was that the Department failed to meet its statutory
obligations to make decisions timeously. The court below rightly
rejected the misjoinder defence.
[62]
Insofar as jurisdiction is concerned, the court below had regard to s
6(1) of PAJA read with the definition of ‘court’
in that
legislation, as set out in para 37 above and had regard to the
relevant parts of s 21(2) of the Superior Courts Act 13
of 2010 set
out in para 38 above.
[63]
As stated earlier, the court below held that the Minister had a
principal place of business within the jurisdiction of that
court,
and even though the other departmental appellants did not operate
within the jurisdiction of the court below, because of
the provisions
of s 21, it had jurisdiction to entertain the application brought by
De Saude and Visa One. The heads of argument
on behalf of the
appellants, incredulously, in my view,
inter alia
, assert the
following:
‘
The
Respondents cited the Minister because he is the official to whom
applications for naturalisation as a citizen must be directed
in
terms of the Citizenship Act. Only two of the 323 applications in
issue are, however, applications for citizenship in respect
of which
the Minister is called upon to make a decision. The remaining 321
decisions are to be made by the First and Third Appellants,
neither
of whom are located within the jurisdiction of the court
a
quo
.
.
. .
It
is submitted that the Respondents cannot, as they have sought to do,
consolidate separate and distinct complaints in one application
and
thereby confer upon a High Court jurisdiction over decision-makers
over whom it would otherwise not have jurisdiction, simply
because
the reason for the complaint is the same.’
[64]
The Minister is nominally and ultimately responsible for the actions
of office bearers and functionaries within the Department.
What is
set out above ignores that fact and the aligned legal position.
Furthermore, it is the Department that chose to accept
the
applications of the affected persons within the area of the
jurisdiction of the court. The outcome of decisions is conveyed
within the jurisdiction of the court. In addition, De Saude and Visa
One (the applicants in the court below) have their offices
within the
area of the jurisdiction of that court. In light of the aforesaid,
the attitude adopted by the appellants in relation
to jurisdiction is
baffling. Given what was conveyed to us at the outset by counsel on
their behalf, the ineluctable conclusion
is that the stance adopted
in respect of the litigation was one that was deliberately
obstructive and dilatory. This is further
borne out by the fact that
in a number of cases involving litigation with affected parties and
attorneys representing them, the
appellants did not rely on these
technical points. The approach of the appellants, in a word, is
unconscionable, especially coming
from a state department. It could
also, rightly, be described as disgraceful.
[65]
The essential conclusions by the court below cannot be faulted. The
appeal is dismissed with costs.
__________________
M
S Navsa
Acting
President
Appearances:
For
the Appellants: G Quixley
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
the Respondents: D Simonsz
Instructed
by:
De
Saude Attorneys, Cape Town
Phatsoane
Henney, Bloemfontein
[1]
Section 19(4)
of the
Immigration Act
13 of 2002
reads as follows:
‘
Subject
to any prescribed requirements, a critical skills work visa may be
issued by the Director-General to an individual possessing
such
skills or qualifications determined to be critical for the Republic
from time to time by the Minister by notice in the
Gazette
and to those members of his or her immediate family determined by
the Director-General under the circumstances or as may be
prescribed.’
[2]
Section 1
of the the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) defines 'court' as
follows:
'
"court"
means –
(a)
the Constitutional Court
acting in terms of section 167(6)
(a)
of the Constitution; or
(b)
(i) a High Court or
another court of similar status; or
(ii)
a Magistrate's Court for any district or for any regional division
established by the Minister for the purposes of adjudicating
civil
disputes in terms of section 2 of the Magistrates' Courts Act, 1944
(Act 32 of 1944), either generally or in respect of
a specified
class of administrative actions, designated by the Minister by
notice in the
Gazette
and presided over by a magistrate, an
additional magistrate or a magistrate of a regional division
established for the purposes
of adjudicating civil disputes, as the
case may be, designated in terms of section 9A; within whose area of
jurisdiction the
administrative action occurred or the administrator
has his or her or its principal place of administration or the party
whose
rights have been affected is domiciled or ordinarily resident
or the adverse effect of the administrative action was, is or will
be experienced.'
[3]
See para 38 of
Democratic
Alliance & others v Acting National Director of Public
Prosecutions & others
,
and the reference there to
Wood
& others v Ondangwa Tribal Authority & another
1975
(2) SA 294 (A).
[4]
In this regard see the instructive
dicta paras 41-44 of the decision of the Constitutional Court in
Giant Concerts CC v Rinaldo
Investments (Pty) Ltd & others
[2012] ZACC 28; 2013 (3) BCLR 251 (CC).
[5]
Paras 57-70.