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[2015] ZAWCHC 130
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Eisenberg de Saude and Others v Director-General of the Department of Home Affairs and Others (14705/14) [2015] ZAWCHC 130 (15 September 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 14705/14
DATE: 15 SEPTEMBER 2015
In the matter between
EISENBERG DE
SAUDE
.....................................................................................
FIRST
APPLICANT
IMMIGRATION MANAGEMENT
SERVICES
SA t/a VISA
ONE
...............................................................................................
SECOND
APPLICANT
HELMUT
BENTE
................................................................................................
THIRD
APPLICANT
HELENE SOFIA MARGARETA
VAERLIEN
..............................................
FOURTH
APPLICANT
FREDERIC ALAIN
LANDOLT
...........................................................................
FIFTH
APPLICANT
And
THE DIRECTOR-GENERAL OF
THE DEPARTMENT
OF HOME
AFFAIRS
.........................................................................................
FIRST
RESPONDENT
THE MINISTER OF HOME
AFFAIRS
.....................................................
SECOND
RESPONDENT
THE DIRECTOR OF
IMMIGRATION SERVICES:
WESTERN
CAPE
............................................................................................
THIRD
RESPONDENT
Coram
:
ROGERS J
Heard:
27 AUGUST 2015
Delivered:
15 SEPTEMBER 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
In this interlocutory
application the applicants seek a declaration regarding the
interpretation of orders made on 13 November 2014
and 27 February
2015 and an order requiring the first respondent to appear in person
to be questioned regarding non-compliance
with these orders.
[2]
The first applicant
(‘EDS’) is a firm of attorneys specialising in
immigration and citizenship law. The second applicant
(‘IMS’)
is a service provider in the same field. The third to fifth
applicants are among their clients. In this judgment,
I shall refer
to EDS and IMS collectively as ‘the applicants’ (the
third, fourth and fifth applicants have played no
significant part).
I shall refer to the persons for whom EDS and IMS act as ‘clients’.
The first, second and third
respondents are the Director-General of
the Department of Home Affairs, the Minister of the said Department
and the Director of
Immigration Services: Western Cape.
[3]
All references to
sections in this judgment are to sections of the
Immigration Act 13
of 2002
unless otherwise stated.
August –
November 2014
[4]
On 18 August 2014 the
applicants instituted urgent proceedings for 11 September 2014
alleging that the Department had been guilty
of unreasonable delay in
processing 977 matters for their clients, particulars of which were
set out in ten lists. The ten lists
and the numbers of allegedly
outstanding matters were as follows:
·
List 1
:
applications for temporary residence (‘TR’) permits in
terms of
s 10
–
625
;
·
List 2
:
applications for permanent residence (‘PR’) permits in
terms of
s 27
–
107
;
·
List
3
: internal
administrative reviews, in terms of
s 8
, of decisions refusing
TR permits – 63;
·
List
4
: internal
administrative reviews, in terms of
s 8
, of decisions refusing
PR permits – 34;
·
List
5
: applications
for the administrative correction of TR permits – 108;
·
List
6
: applications
for the administrative correction of PR permits – 4;
·
List
7
: exemption
applications in terms of
s 31
–
2
.
·
List
8
: application
in terms of
s 29(2)
to set aside the declaration of a person as
a prohibited person – 1.
·
List
9
: applications
for citizenship in terms of the South African Citizenship Act 88 of
1995 (‘the Citizenship Act’)
– 28.
·
List
10
: applications,
in terms of s 5(8) of the Citizenship Act, for the
reconsideration of refusals of citizenship –
5.
[5]
The relief sought were
orders (i) reviewing and setting aside the failure of unknown
officials to decide the matters within a reasonable
time; (ii)
directing the respondents to ‘determine and deliver to’
the applicants decisions on the matters in question
within specified
periods ranging from 15 to 60 calendar days depending on the
category; (iii) declaring what ‘deliver’
meant for
purposes of the order; (iv) laying down a procedure to be
followed if an outstanding case had been misplaced by
the Department.
(The 15-day period applied to administrative corrections, the 30-day
period to matters concerning TR, exemptions
and status as a
prohibited person, and the 60-day period to matters concerning PR and
citizenship.)
[6]
The matter stood down
on 11 September 2014. On 15 September 2014 the State Attorney,
representing the respondents, wrote to EDS,
confirming the
respondents’ willingness to a hearing on the semi-urgent roll
with dates for filing affidavits. The respondents
undertook, in the
same letter, to determine and deliver the outstanding matters in
accordance with the time periods specified in
the notice of motion
and to follow the requested procedure in respect of any outstanding
matters where the files had been misplaced.
[7]
On 16 September 2014
Bremridge AJ by agreement postponed the application for hearing on
the semi-urgent roll on 13 November 2014
with a timetable for
answering and replying affidavits. The applicants say that they
agreed to this in view of the respondents’
undertakings.
[8]
The respondents did not
file answering papers. On 23 October 2014 the applicants filed a
supplementary affidavit in which they said
that 699 matters were
still outstanding. They attached revised lists. In respect of lists
1, 3, 5, 6 and 7 a significant number
of matters were still
outstanding despite the fact that the periods mentioned in the
respondents’ undertakings (15/30 calendar
days) had expired.
For example, there were 380 outstanding applications for TR permits
(list 1) and 56 outstanding internal reviews
in respect of TR permits
(list 3). In respect of lists 2, 4, 9 and 10, where the period of the
undertaking was 60 calendar days
(and thus due to expire on 14
November 2014), little progress had been made. The outstanding
applications for PR (list 2) had only
reduced from 107 to 92 while no
inroads at all had been made in respect of citizenship applications
(list 9) or the reconsideration
of refusals of citizenship (list 10).
The respondents had also not invoked the procedure relating to
misplaced files.
[9]
The matter came before
McCurdie AJ on 13 November 2014. The respondents had still not filed
papers though I infer that they were
represented by counsel (the
learned judge stated in her order that she had heard counsel for the
parties). She granted the relief
sought in the notice of motion. This
meant that the specified periods for compliance (15 to 60 calendar
days) would expire on 28
November 2014, 13 December 2014 and 12
January 2015 depending on the category.
December
2014 – February 2015
[10]
On 27 January 2015, by
which stage all the periods set by McCurdie AJ had expired, EDS wrote
to the State Attorney summarising the
current position. They said 506
matters remained outstanding, with significant non-compliance across
all categories. For example,
the outstanding matters included 243 TR
applications (out of an initial 625), 72 PR applications (out of an
initial 107), 49 TR
reviews (out of an initial 63), 83 TR corrections
(out of an initial 108) and 27 citizenship applications (out of an
initial 28).
EDS complained that this gross failure had occurred
without explanation. The respondents were notified that, unless all
the outstanding
decisions were delivered by 30 January 2015, the
applicants would approach the court for further urgent relief.
[11]
There having been no
response, the applicants on 10 February 2015 brought an application
in terms of rule 6(11) for hearing on 26
February 2015 for orders (i)
declaring that the respondents had failed to comply with McCurdie
AJ’s order; (ii) directing
them to do so within 15 working
days in respect of lists 2, 4, 9 and 10 and within 10 working days in
respect of the other lists;
(iii) directing the respondents to
identify, for each list, a departmental official in Gauteng who would
bear ultimate responsibility
for finalising the list and to file an
affidavit from such official explaining the reasons for
non-compliance and the steps taken
and to be taken to ensure
compliance; (iv) granting the applicants leave, if there was not
compliance with the court’s
further order, to set the matter
down before the urgent judge on at least two clear working days’
notice, at which hearing
the identified officials should be present;
(v) directing that, if the respondents failed to identify
officials as aforesaid,
the Director-General appear in person to
explain why the respondents should not be held in contempt; (vi) that
the respondents
pay the costs on the scale between attorney and
client. According to the affidavit made in support of this
application, the outstanding
matters remained as per the letter of 27
January 2015.
[12]
I was the urgent judge
on 26 February 2015. On that day the respondents belatedly filed an
opposing affidavit, their first in the
proceedings. The affidavit was
by Mr
Ronney
Marhule
(‘Marhule’), the Director: Temporary Residence Visas. He
denied that the respondents were in contempt. He said
that the
Department, ‘with its already strained resources’, had
since the granting of the order on 13 November 2014,
‘constantly
been working towards finally adjudicating’ the outstanding
matters.
[13]
He explained the
Department’s procedure for processing applications for TR and
PR. In the case of TR applications, the procedure
is as follows:
(i) The application is received at a regional office, where its
correctness is checked by an office clerk who
makes certified copies
of original documentation, receives payment and issues a receipt.
(ii) The applicant is interviewed
and fingerprinted and an
interview report compiled. (iii) The Department requests a
report from the State Security Agency,
which can take between six to
twelve months. (iv) The application is couriered to the
Department’s head office in Pretoria.
(v) At the Pretoria
adjudication hub the applicant’s supporting documentation is
verified with other agencies such as
South African Revenue Service
and the South African Qualifications Authority. The applicant’s
personal details are verified
against the Department’s movement
control system. The authenticity of earlier TR permits is confirmed.
(vi) The TR adjudicator
then makes a decision. (vii) The
application and decision are sent to the Department’s
administrative support staff
who capture same on the Department’s
track-and-trace system, whereafter they are sent to the postal
dispatch hub, from where
they are couriered from Pretoria to the
relevant regional office. An SMS notification is sent to the
applicant that the outcome
can be collected at the regional office
within five working days. (viii) Upon receipt, the regional
office updates the matter
on the track-and-trace system.
[14]
Marhule stated that
until recently there were 20 full-time TR adjudicators. This
increased to 30 as from 1 February 2015. The Department
expects an
adjudicator to process 20 TR applications per day. The Department’s
head office receives about 1500 TR applications
per day. (This
suggests that each adjudicator would need to deal with 50
applications per day to avoid mounting backlogs.) The
targeted
turnaround time for TR applications is eight weeks
[15]
In the case of PR
applications, the adjudication process in Pretoria is more rigorous:
(i) The matter is assessed by a PR adjudicator
who prepares a
submission for the Adjudication Committee. (ii) From the
Adjudication Committee the matter goes to the Chief
Director: Permits
and then to the Deputy Director-General: Permanent Residence
Immigration Services. (iii) The final decision
is made by the
Director-General himself.
[16]
Marhule stated that
there are 20 full-time PR adjudicators. The Department’s head
office receives about 40 PR applications
per day from all around the
world. Until recently the Department expected each PR adjudicator to
make five submissions per day,
increased as from 1 February 2015 to
ten. (In contrast to TR applications, this suggests an over-capacity
of adjudicators. However,
the Adjudication Committee and other
officials involved in the process, including finally the
Director-General, would have to do
deal with all 40 applications per
day to avoid mounting backlogs.) The targeted turnaround time for PR
applications is six to eight
months.
[17]
Marhule claimed that
there were only 76 outstanding matters, particulars of which he set
out in annexures. Those annexures dealt
only with lists 1 to 5 and
reflected the following figures for outstanding matters: 30 (list 1);
17 (list 2); 20 (list 3); 7 (list
5) and 2 (list 7).
[18]
In respect of lists 1,
3 and 5 (TR applications, TR reviews and TR corrections), the
‘reasons’ recorded in the annexures
for the absence of
decisions were in all cases ‘copies required’ (Marhule
did not allege that the Department had requested
copies of these
matters in accordance with McCurdie AJ’s order. It appears from
the applicants’ subsequent affidavit
dated 7 April 2015,
referred to below, that a departmental official, Mr Muravha, had in
the latter part of December 2014 requested
copies of certain cases.
The second applicant delivered these on memory sticks, receipt
whereof was acknowledged by Mr Muravha
on 13 January 2015. If these
were the cases to which Marhule was referring, it was not true as at
26 February 2015 that copies
were outstanding. If Marhule was
referring to other cases, the failure to have requested copies in
accordance with McCurdie AJ’s
order is unexplained.)
[19]
In respect of list 2
(PR applications), one of the files was recorded as having been
‘referred to inspectorate’ (presumably
the Inspectorate
established in terms of s 33) while the other 16 were recorded
as having been ‘presented to the committee’
(presumably
the Adjudication Committee) on dates ranging from 18 to 20 February
2015. Why they had only reached this stage of the
process as at 18-20
February 2015 does not appear.
[20]
Marhule concluded by
observing that the various officials, in addition to their daily
load, had to deal with the applications involved
in the present case
and more than 800 applications which were the subject of an order
made by Saldanha J on 8 August 2012 in an
application brought by
Intergrate
Immigration Services CC. (These
latter proceedings were mentioned in the founding papers. The
Department apparently failed to comply
with Saldanha J’s order,
as a result of which Cloete AJ (as she then was) on 28 November 2012
made a declaration of non-compliance
and ordered compliance by 14
December 2012, an order with which there was also not compliance
until further litigation which concluded
in the second half of 2013.)
[21]
Later on 26 February
2015 the applicants, through Ms de Saude of EDS, filed a short
replying affidavit. She said that Marhule’s
figures were
‘grossly erroneous’. The outstanding matters as a 10
February 2015 numbered 503. Although she had not
been able to check
the most recent figures, the applicants had certainly not received
more than 100 applications since 10 February
2015, she suspected
considerably fewer. There were at least 400 applications outstanding.
She said that whenever the applicants
received an outcome they
removed it from their lists. If the matter was still on their lists,
it meant the outcome had not been
received. She said that their
clerks attended at the Department’s Cape Town office every one
to two days.
[22]
Having heard counsel, I
made an order on 27 February 2015. Although the order was not by
agreement, its various components were
discussed during argument and
my impression is that both sides regarded the order as acceptable.
The order was in summary the following:
(i) It was declared that
the respondents had failed to comply with McCurdie AJ’s order
(para 1). (ii) The respondents
were directed to comply with the
said order within 10 working days in the case of lists 1, 3, 5, 6, 7
and 8 and within 20 working
days in the case of lists 2, 4, 9 and 10
(para 2). (iii) Within five working days from the later of these
dates, the applicants
were to file an affidavit and schedules setting
out which applications in their view remained outstanding, together
with such further
facts as they deemed relevant (para 3). (iv) Within
a further five working days the respondents were to file an affidavit
and schedules by the Director-General personally setting out which
applications in his view remained outstanding, together with
such
further facts as he deemed relevant (para 4). (v) If the
applicants still considered there to be non-compliance, they
were
granted leave to set the matter down for hearing before the urgent
judge, on at least ten clear working days’ notice
to the
respondents, for a finding that respondents were in contempt (para
5). (vi) If the applicants considered that the Director-General
should be present on the said occasion, they were granted leave to
seek a direction from a judge in chambers, not less than five
clear
working days before the hearing and on not less than 48 hours’
notice to the respondents, that the Director-General
be ordered to
appear in person to answer such questions as the court might direct
to him or permit to be asked (para 6). (vii) The
costs stood
over for later determination (para 7).
March –
April 2015
[23]
On 7 April 2015 the
applicants filed the affidavit contemplated in para 3 of the above
order. They alleged that there had been virtually
no progress on
lists 6 to 10. In regard to lists 1 to 5, they said that in general
the Department’s officials had been ‘responsive,
open and
efficient’. There were nevertheless a number of outstanding
cases on these lists.
[24]
The applicants provided
updated figures, distinguishing between matters that were
‘outstanding’ and those which according
to the Department
had been ‘dispatched’ (ie allegedly
en
route from Pretoria to Cape Town).
Although the ‘dispatched’ matters were not categorised by
the applicants as ‘outstanding’,
they stated that
‘dispatched’ was not a reliable indicator that the
decisions would in fact be available in Cape Town
within a reasonable
time. According to the Department, the majority of the ‘dispatched’
matters had been dispatched
on 20 or 25 March 2015 yet as at 2 April
2015 they were still not available in Cape Town for collection. (It
may be added that
in terms of the orders of 13 November 2014 and 27
February 2015 the outcomes had to be available in Cape Town for
collection within
the specified period. Dispatch from Pretoria was
not in itself compliance.)
[25]
There were also several
other problems. For example, despite notification that decisions were
available for collection, they were
sometimes not in fact available
when the applicants arrived to collect them. Another problem
was that the Department was
claiming that certain outcomes had been
collected whereas the applicants had no record of this. Very
occasionally a client would
collect a decision personally. However,
the Department failed to identify which such outcomes had allegedly
been collected by clients
personally, making it difficult for the
applicants to verify the information. There was also inconsistent
information supplied
by different officials regarding the status of
outstanding matters.
[26]
Another issue raised in
the affidavit concerned the insertion of permits into passports. This
relates only to TR permits. The permits
are printed on stickers. For
some months the Department allowed the applicants to collect stickers
and insert them into their clients’
passports. This meant that
the applicants did not need to have their clients’ passports
before collecting the permits. This
practice was convenient because
it might take time to obtain the passport, particularly if the client
was travelling. However,
towards the end of March 2015 the Department
terminated this practice. According to an email dated 30 March 2015
from Mr E Bosch
(Deputy Director: Investigations, Counter Corruption,
Western Cape), ‘best practice’ dictated that permits must
be
endorsed into the passports by a departmental official before the
passports left the Department’s premises.
[27]
In summary, the
applicants alleged the state of play to be the following (the figures
in brackets are the numbers of matters outstanding
as at the date of
McCurdie AJ’s order):
list
1
– 44
outstanding, 30 dispatched (380);
list
2
– 40
outstanding, 17 dispatched (86);
list
3
– 37
outstanding, 8 dispatched (56);
list
4
– 7
outstanding, 0 dispatched (31);
list
5
– 23
outstanding, 21 dispatched (102);
list
6
– 2
outstanding, 0 dispatched (2);
list
7
– 2
outstanding, 0 dispatched (2);
list
8
– 1
outstanding, 0 dispatched (1);
list
9
– 27
outstanding, 0 dispatched (28);
list
10
– 5
outstanding, 0 dispatched (5). There were thus, on the applicants’
version, at least 188 matters ‘outstanding’
and another
76 ‘dispatched’, all of these representing non-compliance
with the orders.
[28]
On 21 April 2015 the
respondents filed an affidavit by Ms Yumna Abrahams (‘Abrahams’),
a Control Immigration Officer
employed by the Department in Cape
Town. This was followed by a confirmatory affidavit dated 30 April
2015 from the Director-General,
Mr
Mkuseli
Apleni, confirming Abrahams’
affidavit. The Director-General’s affidavit, read with that of
Abrahams, constituted a
somewhat belated affidavit as contemplated in
para 4 of the order of 27 February 2015.
[29]
The Director-General
said that, because he does not deal personally with the cases forming
the subject matter of the proceedings,
he had asked Abrahams to
liaise with other officials to determine the status of the various
cases. He said he had read her affidavit
and confirmed its contents.
It was clear, he said, that the Department’s officials had done
everything within their power
to finalise the outstanding cases and
that the remaining non-compliance was not occasioned by deliberate
conduct by departmental
officials. (It does not appear to be entirely
accurate to say that the Director-General does not deal personally
with any of the
cases. He is, according to the Department’s
earlier affidavit, the final decision-maker on PR applications.)
[30]
He prefaced these
allegations by stating that he had at all material times been aware
of the court orders and that the time periods
set therein were not
met. This was not on account of any indolence by departmental
officials. He asked the court to take into account
that, despite
South Africa’s many problems, it is still an attractive country
to many foreigners. The Department not only
has to deal with the
cases which form the subject matter of the present litigation but
with thousands of other persons seeking
to live, work or study in
South Africa. The Department operates within certain constraints
which at times impact adversely on service
delivery: ‘I know
that this cannot be an excuse, but it is a fact which I as the
Director-General in the Department, have
to live with.’
[31]
Abrahams stated that
she had perused the applicants’ lists of 7 April 2015 and
compared them with the Department’s records.
She attached an
annotated version of the applicants’ lists. The annotations
were: ‘A’ – available for collection;
‘C’
– collected by the applicants; Grey Areas – collected by
the applicants (the distinction between this
category and ‘C’
is unclear); ‘DFM’ – dispatched to foreign mission;
‘OEA’ – outcome
explained in affidavit. The
annotation ‘DFM’ relates to cases where the final outcome
is dispatched to a foreign mission
for collection by the client (ie
where the application had been made abroad). On the Department’s
approach, only the ‘OEA’
cases could be regarded as
outstanding. These were as follows:
list
1
– 6;
list
2
– 11;
list
3
– 12;
list
4
– 2;
list
5
– 2;
list
6
– 1;
list
7
– 2;
list
8
– 0;
list
9
– 7;
list
10
– 1. Some
of the OEA cases had allegedly been ‘dispatched’. In
other cases it was said that the Department was
‘attending to
the finalisation’ of the matter or that it was ‘at the
adjudication hub’ or that it was ‘pending
with
inspectorate’ or that it had been approved but the decision
still had to be issued. Other explanations included the
need for
passport or ID numbers or copies of the applications.
[32]
In regard to the
insertion of stickers into passports, Abrahams alleged that in terms
of regulation 7(7) this had to be done by
a departmental official.
May –
August 2015
[33]
On 28 May 2015 the
applicants delivered the present interlocutory application. In Part A
they seek orders (i) declaring that, on
a proper interpretation of
the orders of 13 November 2014 and 27 February 2015, the respondents
have to deliver decisions in Cape
Town without requiring the
applicants to produce the clients’ passports; and
(ii) directing the Director-General to
appear in person at the
hearing of Part B to answer such questions as the court may direct to
him or permit to be asked. In Part
B they seek orders (i) declaring
that the respondents are in contempt of the orders, alternatively
that their failure to comply
with the orders is inconsistent with the
Constitution and unlawful, alternatively that they have failed to
comply with the orders;
(ii) directing the respondents to take
all necessary and urgent steps to comply with the orders within one
week, including
making arrangements to visit the applicants’
offices to copy at their own expense all documentation needed to
comply with
the orders; (iii) costs on the attorney and client
scale.
[34]
Save for the relief
sought in respect of the insertion of TR stickers into passports, the
above application can be viewed as brought
pursuant to paras 5 and 6
of the order of 27 February 2015. It is also in the nature of a reply
to the affidavits of Abrahams and
the Director-General together with
updated information. Mr Eisenberg (‘Eisenberg’) on behalf
of the applicants says
in supporting affidavit that, even on the
respondents’ version, there were 44 outstanding matters when
Abrahams deposed to
her affidavit (being all the ‘OEA’
matters). He alleges that there are in fact still 66 cases
outstanding. A major
cause of discrepancy, according to the
applicants, is that the Department is incorrectly claiming that
certain outcomes have been
collected by the clients whereas this is
factually incorrect – this applies mainly to lists 1 and 9. He
adds that there are
another 30 matters (over and above the 66)
regarded by the applicants as ‘live’, in that the
outcomes have not yet
been collected in Cape Town but are allegedly
available for collection once the applicants are able to produce
their clients’
passports.
[35]
Eisenberg also
questions the reliability of Abrahams’ affidavit in other
respects. It is common cause that Abrahams met with
representatives
of the applicants on 16 April 2015 with a view to reaching clarity on
the status of the various cases. Eisenberg
says that at this meeting
she gave the applicants’ representatives a list reflecting
inter alia a number of cases of which
the Department allegedly had no
trace; yet barely a week later some of these matters featured in her
affidavit as having been collected
by the clients in question.
[36]
In regard to the Part B
relief, Eisenberg alleged that the Department undoubtedly had the
resources to comply with the orders. He
asked the court to infer that
the only explanation for non-compliance was that the Department could
not be bothered to comply.
He submitted that dolus eventualis was a
sufficient basis for a finding of contempt. He emphasised the
Department’s non-compliance
with three sets of time limits,
namely those in their undertaking of 15 September 2015, in the order
of 13 November 2014 and in
the order of 27 February 2015. He asked
the court to view this non-compliance against the background of
non-compliance with similar
orders in past cases (particulars of
which were furnished in the founding papers of August 2014). The
systemic failings which had
led to past non-compliance were simply
not addressed. He said that the outstanding cases only received real
attention after the
order of 27 February 2015, which presaged that
the Director-General himself might need to explain continuing
non-compliance. Even
then, so Eisenberg complained, the task of
monitoring compliance was left to a ‘relatively junior
official’, namely
Abrahams.
[37]
Towards the end of June
2015 the applicants’ counsel approached me to ascertain whether
I could hear Part A in chambers during
recess. I replied that it was
not essential that I be the judge to deal with the matter and that,
if they considered the case sufficiently
urgent, they should approach
the duty judge during recess, failing which I would be willing to
hear the matter in the third term.
The parties chose the latter
course, and so the matter came before me on 27 August 2015, Mr
Simonsz appearing for the applicants
and Mr Albertus SC leading Mr
Papier for the respondents.
[38]
The respondents did not
file further affidavits. When I enquired about the current status of
outstanding matters, Mr Simonsz handed
up an updated schedule.
Although the schedule was not verified by affidavit, I note that 32
of the 44 matters previously classified
by the respondents as ‘OEA’
are still, according to the applicants, outstanding.
[1]
In other words, 12 of those matters have, on the applicants’
version, subsequently been collected or are allegedly available
for
collection. Of the 66 cases previously regarded by the applicants as
outstanding, 55 (including the 32 outstanding ‘OAE’
cases) are recorded in the updated schedule as still outstanding.
The
insertion of stickers into passports
[39]
The relief claimed in
respect of the insertion of stickers into passports is framed as a
declarator concerning the interpretation
of the orders of 13 November
2014 and 27 February 2015. The later of these orders did not deal
with the term ‘deliver’.
In the earlier order it was
declared that ‘deliver’ for purposes of the order meant
(my underlining):
‘
4.1. The
Respondents must inform the Applicants in writing and/or via
electronic mail as soon as a decision on any of
the applications
referred to in paragraphs 2 and 3 above (“the overdue
applications”) arrives at the Cape Town offices
of the
Department of Home Affairs;
4.2. When the
Applicants arrive at the Cape Town offices of the Department of Home
Affairs to collect decisions on overdue
applications,
the
decisions shall be made available to them immediately and shall not
be unreasonably delayed by reason of any ticketing system
or other
internal procedure
; and
4.3. The Respondents
shall, within three (3) days of the date of this order, inform the
Applicants in writing of an official
at the Cape Town offices of the
Respondents who shall be responsible for the delivery of any
decisions on the overdue applications.’
[40]
The underlined words
are those which the applicants say should be interpreted to mean
inter alia that the respondents cannot insist
that the applicants
produce their clients’ passports for the insertion of stickers
by the departmental officials and must
instead hand over the stickers
for later insertion by the applicants.
[41]
In their founding
papers of August 2014 the applicants stated that the outstanding
cases (then numbering 977) were all lodged before
26 May 2014 and
were thus governed by the
Immigration Act as
it read prior to the
amendments effected by the
Immigration Amendment Act 3 of 2007
, which
came into force on 26 May 2014. Similarly, the new Immigration
Regulations promulgated with effect from 26 May 2014 were
said not to
be applicable. The respondents, in opposing the declarator, relied
inter alia on regulation 7(7) of the old Immigration
Regulations. Mr
Simonsz submitted that there was no corresponding provision in the
new Immigration Regulations. However, I think
the applicants’
stance in the founding papers was correct: applications submitted
prior to 26 May 2014 were to be finalised
in accordance with the law
then applicable. The provisions discussed below are thus those in
force prior to 26 May 2014.
[42]
As noted, the dispute
regarding the insertion of stickers is relevant only to TR permits.
These are dealt with in s 10 read
with ss 11 to 23. These
sections refer simply to permits issued by the Director-General.
Applications for TR permits are further
regulated by regulation 7 of
the old Immigration Regulations. Regulation 7(1) sets out the
documents to be submitted as part of
the application. These include a
valid passport. In terms of regulation 7(2) this must be an original
or duly authenticated copy.
I understand that in practice an
authenticated copy is submitted. Regulation 7(7) reads as follows:
‘
(7) Any
temporary residence permit contemplated in section 10 of the Act
shall –
(a) be entered in or
affixed to the passport of the applicant or, in the case of an
applicant already present in the Republic
who has provided proof that
he or she has been unable to obtain a passport, on a document on
which at least the applicant’s
full names, date of birth and
passport number shall appear; and
(b) only be valid if an
entry stamp has been affixed thereto at the port of entry or, in the
case of a permit issued at an
office of the Department within the
Republic, the stamp of that office.’
[43]
The passports in which
TR permits are entered or affixed are foreign passports (the holder
of a South African passport would be
a South African citizen and
would thus not require a TR permit).
[44]
Mr Simonsz pointed out
that regulation 7(7) does not state that the affixing of the permit
must be done by the Department. That
is so but one would nevertheless
expect that, where a permit is issued in a form requiring endorsement
into a passport, the affixing
would be a departmental responsibility.
The Department has an obvious interest in ensuring that the TR permit
is affixed to an
original passport corresponding with the certified
copy attached to the application. Regulation 2(1)(e) appears to me to
support
this conclusion. Among the requirements with which a passport
must comply for purposes of the Regulations is that it should contain
‘at least one unused page when presenting the passport for
purposes of endorsing a visa or a permit’. The word
‘presenting’
here must mean presenting the passport to
the Department for purposes of endorsement by the latter’s
officials.
[45]
I need not finally
decide whether the Department could, in terms of the Act and
Regulations as they read prior to 26 May 2014, lawfully
delegate the
function of affixing TR permits to external immigration
practitioners. The Department, having regard to its prior
practice,
appears to have regarded this as permissible. On the assumption that
this is so, the question nevertheless remains whether
the
Department’s recent insistence that its own officials affix the
stickers into the clients’ passports contravenes
McCurdie AJ’s
order as properly interpreted. Para 4.2 envisages that the applicants
(ie EDS and IMS), not their clients,
will collect ‘decisions’,
ie (for present purposes) the TR permits. Para 4.2 requires that the
decisions should, ‘immediately’
on their arrival in Cape
Town, be made available to the applicants. The word ‘immediately’
must be understood with
reference to what follows, namely that the
making available of the decisions should not be ‘unreasonably
delayed by reason
of any ticketing system or other internal
procedure’.
[46]
At the time McCurdie AJ
made her order the practice prevailing between the parties was that
the Department allowed EDS and IMS to
collect the stickers and affix
them to their clients’ passports. This practice was not
mentioned in the affidavits which
served before McCurdie AJ,
presumably because it was not anticipated that the Department would
depart from it. What was said in
support of the relief granted in
para 4 of the order was that the respondents had over the years
‘adopted a number of internal
bureaucratic measures’ that
would frustrate the purpose of an order in the applicants’
favour. The only example given
was that the Department in Cape Town
had recently adopted a rule that an immigration practitioner was not
allowed to submit more
than five permit applications per day and was
not allowed to collect more than five permit decisions per day. If
that rule were
applied to the 977 cases which were the subject of the
proceedings, it would take 196 working days to collect the permits.
[47]
Since McCurdie AJ’s
attention was not directed to the question of the affixing of TR
residence permits into passports, I am
loath to interpret her order
as settling this question. (The same is true, insofar as relevant, to
the proceedings leading to my
order of 27 February 2015.) On the
assumption that the Department could lawfully have delegated the
affixing function to EDS and
IMS, what happened in late March 2015
was that the Department terminated the delegation. I do not think
that this can be said to
be an act falling within the words ‘any
ticketing system or other internal procedure’. It is quite
unlike the quota
system mentioned in the founding papers. The
Department is not requiring that the clients themselves present their
passports. It
has not adopted a procedure in terms whereof the
decisions are not immediately available to EDS and IMS upon
presentation of the
original passport. It should also be borne in
mind that a TR permit is not valid for use until affixed to a
passport. Accordingly,
the period during which (under the old
practice) the applicants had stickers in their possession but were
awaiting the original
passports from their clients was not a period
during which the TR permits were of practical use to their clients.
[48]
I conclude that the
applicants are not entitled to the relief sought in para 1 of Part A.
Oral
evidence
[49]
The other part of the
relief sought in Part A (the merits of Part B are not presently
before me) is an order that the Director-General
appear in person at
the hearing of the Part B relief to answer such questions as the
court may direct to him or permit to be asked.
The Part B relief is
concerned with the respondents’ non-compliance with the orders
of 13 November 2014 and 27 February 2015
and whether such
non-compliance constitutes contempt, alternatively a violation of the
Constitution. Part B also seeks an order
that the outstanding cases
be finalised within one week.
[50]
The applicants’
request that the Director-General be ordered to appear in person to
be questioned accords with para 6 of the
order of 27 February 2015.
Although I gave that order, I did not finally determine whether and
in what circumstances the Director-General
should be ordered to
appear, if at all. The order as a whole was intended to convey to the
respondents the importance of compliance.
Paras 4 and 6 in particular
emphasised the need for accountability at a high level, by requiring
an affidavit from the Director-General
personally and by
foreshadowing that he might have to appear on a future occasion to
explain any continuing non-compliance. Such
questions would not
necessarily have related to contempt; the court might have wished to
know why particular cases were still outstanding,
with a view to
giving further directions.
[51]
The purpose for which
the applicants seek to subject the Director-General to questioning
appears to be primarily in relation to
the contempt relief sought in
Part B. The requirements of contempt are trite: an order, service on
or knowledge by the respondent,
non-compliance with the order, and
wilfulness and mala fides. In regard to the burden of proof, there is
a distinction between
contempt proceedings directed at committal and
contempt proceedings directed at other relief such as a declaration
of contempt,
fines and mandatory orders. In the case of committal,
the respondent, though not an accused person for purposes of s 35
of
the Constitution, is entitled to analogous procedural protections.
In particular, the applicant must prove the requisites of contempt
beyond reasonable doubt, though once the applicant has proved the
first three elements (the order, service/notice and non-compliance)
the respondent bears an evidential burden to raise reasonable doubt
on wilfulness and mala fides (
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 42;
Meadow
Glen Home Owners Association & Others v Tshwane City Metropolitan
Municipality & Another
2015
(2) SA 413
(SCA) para 16;
Pheko
& Others v Ekurhuleni Metropolitan Municipality (No 2)
2015
(6) BCLR 711
(CC) paras 33-36). In cases where committal is not at
stake, the applicant need only prove the first three elements of
contempt
on a balance of probability (
Pheko
para 37). And since
Fakie
was
only concerned with the question whether the common law approach was
appropriate for committal cases under our new constitutional
dispensation, it would seem that in cases not involving committal the
pre-
Fakie
common law applies: the applicant bears the burden of proof on a
balance of probability in relation to the order, service/notice
thereof and non-compliance; the respondent then has a full onus to
prove on a balance of probability that the non-compliance was
not
wilful and mala fide (see
Fakie
para 12 and the
cases cited in footnote 22).
[52]
The applicants in the
present case do not seek committal. The primary relief in Part B is a
declaration that the respondents are
in contempt together with an
order directing compliance within one week. If the applicants were
seeking committal, the nature of
the proceedings would almost
certainly have made it inappropriate to compel the Director-General
to submit to cross-examination.
A respondent at risk of committal
should be at liberty to determine what evidence if any he will tender
to raise reasonable doubt
on wilfulness and mala fides. The same does
not hold true for contempt proceedings of the present kind, which are
not concerned
with committal. It would not necessarily be
objectionable, where there is a dispute of fact, to direct a deponent
to appear for
oral examination. Quite apart from the order of 27
February 2015, this is one of the powers which the court has in terms
of rule
6(5)(g).
[53]
However, an alternative
course, where there is a dispute of fact, is to refer the disputed
issue or issues to oral evidence, leaving
it to the litigants to
decide what witnesses they will call. I have come to the conclusion
that this is the preferable course to
follow. While I would expect
the Director-General to be able to give relevant evidence and while
he may be at risk of a contempt
finding if he does not testify, a
proper investigation into the respondents’ non-compliance with
this court’s orders
is likely to require evidence from other
officials as well and possibly also from the applicants. If the
Director-General were
the only witness, he is likely to be questioned
on many matters which could more appropriately be answered by other
officials.
I must bear in mind that he is a senior official with many
demands on his time. He should not be made to spend more time in the
witness box than is necessary.
[54]
I raised with counsel
the possibility of a referral to oral evidence in place of the
requested examination of the Director-General.
The Part A prayers
include the customary request for further and/or alternative relief.
The applicants, presumably in the light
of para 6 of the order of 27
February 2015, asked for oral evidence from the Director-General. I
have explained why I am reluctant
to follow that course. However, if
oral evidence on contempt is otherwise warranted because of disputes
of fact, it would not be
unfair to the respondents to make such an
order in lieu of a direction that the Director-General submit himself
for questioning.
The court has a wide discretion in terms of rule
6(5)(g) with a view to achieving a just and expeditious decision
(
Lombaard v Droprop
CC & Others
2010
(5) SA 1
(SCA) para 25). In
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) Murray AJP said, with reference to Rule 9 of the
rules then applicable in the Transvaal Provincial Division, that the
calling
of evidence rests with the judge regardless of whether the
parties request it (at 1168). The same is true of rule 6(5)(g) though
fairness would generally require the judge to raise the matter with
counsel before making a ruling (I did so in this case).
[55]
On the papers there is
a factual dispute on the elements of wilfulness and mala fides. This
goes to the respondents’ state
of mind. The applicants cannot
be expected to have direct and personal knowledge thereof but they
have legitimate grounds for challenging
the respondents’
explanations. The non-compliance has been substantial, both in number
and duration. One may infer that the
respondents would not have given
the undertakings they did through their attorneys on 15 September
2014 unless they believed they
could comply with them. Yet on the
unchallenged evidence relatively little progress had been made by the
time McCurdie AJ granted
her order on 13 November 2014. While there
is some dispute about the precise extent of the non-compliance at
later dates, it was
undoubtedly still substantial in late February
2015 and a non-trivial number of cases remained outstanding as at May
2015 and were
still outstanding at the end of August 2015. Many of
the applications forming the subject matter of the litigation were
submitted
to the Department during the latter part of 2012 and during
2013. The Department has fallen woefully short of its targeted
turnaround
times in respect of these matters.
[56]
I have no reason to
doubt, as the Director-General says, that the Department faces
challenges in fulfilling its constitutional mandates.
However, a
distinction must be drawn between matters with which the Department
is dealing in the ordinary course and those which
it has been ordered
to finalise within a specified period. Once matters have become the
subject of a court order, they require
such priority as is needed to
ensure compliance with the order. If the Department, when sued,
considers that the matters in question
are not entitled to priority
attention, it may oppose the application and appeal the order if
aggrieved. But here the Department
did not file papers in opposition
to the relief sought before McCurdie AJ and did not appeal her order.
The respondents thus had
to give these matters (and any others which
were the subject of court orders) priority attention so that they
could be finalised
within the periods specified by the court. The
respondents could not adopt the attitude that these matters would
simply be processed
in the ordinary course alongside thousands of
others and thus suffer whatever systemic delays arose from
departmental under-capacity,
inefficiency and the like.
[57]
The Director-General in
his affidavit of 30 April 2015 says that non-compliance with the
orders was not on account of any indolence
on the part of persons in
the Department and that they had done everything in their power to
finalise the outstanding applications.
However, the order was not
directed at officialdom in general but at the Director-General, the
Minister and the Director of Immigration
Services: Western Cape. The
question in the Part B relief is whether these three respondents, not
lesser officials, did everything
within their power to ensure that
there was compliance with the orders. The respondents’
affidavits lack the particularity
to enable a court properly to judge
this question. I am of course not suggesting that the respondents
were under a duty to process
the outstanding matters personally.
However, a court, in assessing the question of wilfulness, might wish
to know details of the
instructions given from time to time by the
respondents to subordinate officials to ensure compliance and the
steps taken to monitor
obedience to their instructions. Emails,
memoranda and minutes of meetings may be germane to this enquiry.
This is particularly
so in the light of previous cases of a similar
kind where the respondents were also guilty of non-compliance (more
of which below).
[58]
It might be said that
the applicants could attempt to persuade a court, on the papers, that
there is no genuine dispute of fact
on wilfulness, given the absence
of particularity of the foregoing kind, viewed in the context of the
extent of non-compliance
and prior litigation. However, the
Fakie
case illustrates
the dangers which face an applicant who adopts such a course (see
paras 54-58). Conversely, the respondents might
regard it as unfair
for them to be condemned without the opportunity of providing the
sort of detail which is more suited to an
oral hearing than
affidavits.
[59]
In
Fakie
para 38 Cameron JA
approved the statement in an earlier case that contempt is not an
issue between the parties but between the court
and the party who has
not complied with the order (
Federation
of Governing Bodies of South African Schools (Gauteng) v MEC for
Education, Gauteng
2002
(1) SA 660
(T) at 673D-E). He also quoted with approval from
Victoria
Park Ratepayers’ Association v
Greyvenouw
CC
[2004]
3 All SA 623
(SE) where Plasket J observed that the effectiveness and
legitimacy of the judicial system lie at the heart of the contempt
remedy.
There is thus a public interest element in contempt
proceedings (see also
Glen
Meadow
para 18).
[60]
More recently, in the
Pheko
case
Nkabinde J, writing for a unanimous court, said the following in the
opening paragraphs of her judgment:
‘
[1] The
rule of law, a foundational value of the Constitution, requires that
the dignity and authority of the courts
be upheld. This is crucial,
as the capacity of the courts to carry out their functions depends
upon it. As the Constitution commands,
orders and decisions issued by
a court bind all persons to whom and organs of state to which they
apply, and no person or organ
of state may interfere, in any manner,
with the functioning of the courts. It follows from this that
disobedience towards court
orders or decisions risks rendering our
courts impotent and judicial authority a mere mockery. The
effectiveness of court orders
or decisions is substantially
determined by the assurance that they will be enforced.
[2] Courts
have the power to ensure that their decisions or orders are complied
with by all and sundry, including organs
of state. In doing so,
courts are not only giving effect to the rights of the successful
litigant but also and more importantly,
by acting as guardians of the
Constitution, asserting their authority in the public interest. It is
thus unsurprising that courts
may, as is the position in this case,
raise the issue of civil contempt of their own accord.’
[61]
Later in her judgment
she said this (footnotes omitted):
‘
[25] Before
I deal with these issues, it is important to outline the current
status of our law regarding contempt of
court orders with reference
to the decision of the Supreme Court of Appeal in
Fakie.
I do so while keeping in mind the difficulties inherent in compelling
compliance from recalcitrant state parties in a manner that
displays
the courts’ discontent with disregard for the rule of law.
[26] The starting
point is the Constitution. It declares its own supremacy and this
supremacy pervades all law. Section
165 vouchsafes judicial
authority. It provides that courts are vested with judicial authority
and that no person or organ of state
may interfere with the
functioning of the courts. The Constitution explicitly enjoins organs
of state to assist and protect the
courts to ensure their
independence, impartiality, dignity, accessibility and effectiveness.
In order to ensure that the courts’
authority is effective,
section 165(5) makes an order of court binding on “all persons
to whom and organs of state to which
it applies”. These
obligations must be fulfilled. It is significant that this subsection
specifically mentions organs of
state, for “justiciability and
powers of constitutional review make sense only if non-judicial
authorities cannot and do
not undo court orders and/or their
consequences”. These sections, read alongside the interpretive
injunction of the supremacy
clause, demonstrate why continual
non-compliance with court orders and decisions would, inevitably,
lead to a situation of constitutional
crisis.
[27] Notwithstanding this clear
constitutional imperative that the authority of our courts is to be
respected and upheld, certain
state parties have, on occasion,
displayed a troubling disregard for judicial orders. It is not
difficult to reference examples
of cases involving contempt, by state
organs, of court orders where, most troublingly, constitutional
rights are in issue. The
cases are by no means exhaustive of state
parties’ non-compliance with the orders and decisions of our
courts; they are included
merely to illustrate the extent and nature
of this phenomenon. What they show is not merely that state parties
are failing, in
a very serious way, to meet their constitutional
obligations, but that these failures have real and serious
consequences for those
whose interests they are there to serve.’
[62]
The authorities I have
mentioned emphasise the constitutional importance of compliance with
court orders. This is something in which
organs of state should lead
by example. There has been significant non-compliance in the present
case. The rights of many individuals
to fair and timely
administrative action have been compromised. This is not the first
time that orders have been made against the
respondents for the
timeous finalisation of immigration matters; nor is it the first time
that there has been non-compliance with
such orders. Recent examples
include an order on 23 November 2011 by Cloete AJ (as she then was)
in opposed proceedings in Case
2178/2011 (reported sub nom
Eisenberg
& Associates & Others v Director-General, Department of Home
Affairs & Others
2012
(3) SA 508
(WCC)), an order by consent on 18 May 2012 by Van Staden
AJ in Case 10043/2011 and an order on 8 August 2012 by Saldanha J in
Case
6078/2012. In Case 10043/2011 there was non-compliance with the
order, giving rise to contempt proceedings before Savage AJ as she
then was (see her judgment of 27 November 2012 available on SAFLII at
[2012] 199 WCHC). There was similar non-compliance in Case
6078/2012,
followed by a further order on 28 November 2012. In her judgment in
Case 10043/2011 Savage AJ concluded that she could
not on the papers
reject the respondents’ assertion of an absence of wilfulness
and mala fides but she declared there to
have been non-compliance,
directed compliance within two weeks (
failing
which the Director-General was to appear before court on 14 December
2012 and provide reasons why he should not be held
in contempt)
and made a special costs order. In
the course of her judgment she said this (para 34):
‘
This
order should stand as a stark reminder to the Director-General and
the respondents that orders of this court are not advisory,
to be
complied with as and when it proves possible, but that adherence to
their terms is critical in displaying a fundamental commitment
to our
constitutional democracy, without which the rule of law stands to be
severely prejudiced. This is more so for the respondents
who as part
of the public administration are required to act in accordance with
the law and the values and principles enshrined
in section 195 of the
Constitution.’
[63]
These are powerful
considerations in favour of a proper investigation, by way of oral
evidence preceded by discovery, of the non-compliance.
[64]
Mr Albertus submitted
that I should not refer the matter to oral evidence because it cannot
be said that oral evidence is likely
to tip the balance of
probability in the applicants’ favour on the issues of
wilfulness and mala fides (cf
Bocimar
NV v Kotor Overseas Shipping Ltd
[1994] ZASCA 5
;
1994 (2) SA 563
(A)
at 587D-G). This submission erroneously assumes that the onus on
these issues rests on the applicants. In any event, and on
the
assumption that the probabilities on the papers favour the
respondents, I cannot exclude as a reasonable possibility that this
balance will be disturbed by oral evidence.
[65]
At the conclusion of
argument I asked counsel to discuss and submit to me a draft order if
I were minded to refer the contempt issue
to oral evidence. I also
suggested that it might be sensible, in order to keep the oral
hearing within manageable bounds, to limit
the enquiry to an agreed
list of matters which were outstanding as at 27 August 2015 (the date
of the hearing before me), even
though the evidence bearing on
wilfulness and mala fides was likely to be more general in nature. It
appears preferable, on reflection,
to take the date of Abrahams’
affidavit, namely 21 April 2015, as the relevant date, excluding
however cases which the applicants
accept have since then been
finalised.
[66]
On 4 September 2015 Mr
Simonsz submitted his proposed draft order together with an updated
schedule distinguishing between matters
‘outstanding’,
‘available’ and ‘dispatched to foreign mission’.
The respondents’ counsel
responded on 10 September 2015,
suggesting some modifications to the draft order. They did not
comment on the updated schedule.
[67]
Some of the
‘outstanding’ cases on the updated schedule are cases
which were on the respondents’ own version outstanding
as at 21
April 2015. The explanations provided by Abrahams in respect of these
outstanding matters included that the case was pending
with the
inspectorate, that the case had been finalised and the decision would
be ‘reissued’, that the decision had
been or would be
dispatched or that the case was awaiting finalisation.
[2]
In one case there appears to have been no explanation offered.
[3]
These cases, 16 in all, are according to the applicants still
outstanding. At least in respect of these matters, the respondents
will bear the burden of proving an absence of wilfulness and mala
fides. The period for which they remained outstanding after 21
April
2015 may cast a backward shadow on this question.
[68]
There are another nine
cases which according to the applicants are still outstanding and in
regard to which Abrahams’ explanation
was that the matters
could not be traced and that the applicants would have to provide
copies or further information.
[4]
She does not say that the respondents timeously followed the
procedures set out in para 5 of McCurdie AJ’s order, in terms
whereof they were to notify the applicants within two weeks of any
misplaced applications. Her affidavit seems to have been the
first
occasion where the difficulty in tracing these matters was mentioned
(there is no overlap between them and those of which
Marhule on 26
February 2015 said ‘copies required’). I thus consider
that respondents bear the burden of proving an
absence of wilfulness
and mala fides in the delay in the finalisation of these cases (even
if, contrary to the applicants’
latest schedule, they have in
the meanwhile been finalised).
[69]
There are another four
cases which according to the applicants are still outstanding and in
regard to which Abrahams’ explanation
was that the internal
reviews had been rejected.
[5]
She does not in terms state that the rejection decisions were duly
communicated. However, I do not think I can find on the affidavits
that it is common cause that these matters were, as at the date of
Abrahams’ affidavit, outstanding. If the applicants wish
to
include non-compliance in respect of these matters for purposes of
the contempt hearing, they will bear the onus of proving
the
non-compliance.
[70]
There is an outstanding
case where Abrahams’ explanation is that IMS followed an
incorrect procedure
[6]
and another where she said that the client should make
representations to the foreign mission in China.
[7]
In the absence of further information I do not think these two cases
should be treated as instances of admitted non-compliance.
Once
again, if the applicants wish to have them included in the Part B
hearing, they must prove the non-compliance.
[71]
There are 24 cases
which the applicants regard as currently outstanding but which
according to Abrahams had been collected as at
21 April 2015.
[8]
There is thus a factual dispute regarding whether there was still
non-compliance as at that date (though there may well have been
non-compliance at an earlier stage). Once again, if the applicants
want these matters to be included in the Part B hearing, they
will
need to prove the non-compliance.
[72]
There are a number of
other cases on the latest list marked as ‘available’ or
‘dispatched to foreign mission’.
If, in respect of any of
these cases, the applicants contend that the decisions are not in
truth available in Cape Town or have
not been dispatched to the
foreign mission, they will need to prove the non-compliance.
[73]
The applicants may be
content to confine the contempt hearing to those cases identified
above where I have found that the respondents
will bear the burden of
establishing an absence of wilfulness and mala fides. However, my
order will make provision for the applicants
to press for contempt in
relation to those cases where I have found that they bear the burden
of proving non-compliance. If they
so elect, they will have the duty
to adduce evidence first on the non-compliance in respect of such
matters.
[74]
As will be apparent
from the above discussion, the issues I intend to refer to oral
evidence are (i) the existence and extent
of non-compliance in
respect of the matters mentioned in paras 69 to 72 above; (ii)
whether the respondents were wilful and mala
fide in their
non-compliance in respect of the matters mentioned in 67 and 68 above
and in respect of any further non-compliance
proved by the applicants
in terms of (i). Having regard to the other relief sought in Part B,
provision should also be made for
the furnishing of information as to
matters still outstanding at the time of the Part B hearing.
[75]
As is standard in
referrals to oral evidence, witness statements must be filed in
advance of the oral hearing of the evidence of
witnesses who have not
already made affidavits and of the evidence of deponents not already
contained in their affidavits. The
filing of witness statements must
be preceded by discovery. The parties will not be obliged to call
persons who have made affidavits
or whose witness statements have
been filed but the affidavits and statements of such persons will
then be disregarded on the issues
referred to oral evidence (see
Drummond v Drummond
1979 (1) SA 161
(A)
at 166 in fine;
Lekup
Prop Co No 4 (Pty) Ltd v Wright
2012 (5) SA 246
(SCA) para 32).
[76]
The respondents’
counsel objected to the inclusion in the draft order of a right to
subpoena witnesses, whether or not they
have agreed to furnish a
statement. They expressed the concern that this power might be abused
by the applicants to harass the
Director-General. The right to
subpoena witnesses is a standard provision in referrals to oral
evidence (following one of the leading
cases,
Metallurgical
and Commercial Consultants Pty Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W) at 396G-397B; see also
Kalil
v Decotex
supra at
982H-I and 983H-I). I do not think the power should be excluded in
this case. The court’s inherent jurisdiction remains
to set
aside any subpoena which is vexatious or an abuse of process. In
assessing that question the court would take into account
that the
subpoenaed witness cannot be cross-examined by the party who
calls him.
[77]
Finally, I should
record that it is not necessary that I should be the judge to hear
the oral evidence and determine Part B (see
Metallurgical
and Commercial Consultants
supra
at 395 in fine). It may be a convenient use of judicial resources for
the matter to remain with me but I leave that to the
parties in
consultation with the Judge-President.
Costs and
order
[78]
The applicants asked in
prayer 3 of Part A that costs stand over for determination together
with the costs of Part B. However, I
have found against them on
prayer 1 of Part A, a discrete issue. There is no reason not to
determine those costs now. Since the
respondents did not file
affidavits in opposition to the interlocutory application, their
costs on this issue are limited to the
hearing of 27 August 2015 and
the preparation of heads of argument. In my view the applicants
should pay half of those costs.
[79]
I thus make the
following order:
1. The application for the relief claimed in
prayer 1 of Part A of the notice of application dated 28 May 2015 is
dismissed.
2. In lieu of the relief sought in prayer 2
of Part A of the said notice of application, the following issues
arising
in respect of Part B are referred to oral evidence, to be
heard on a date to be determined by the registrar on a semi-urgent
basis:
(a) whether, in relation to the matters identified
in 3 below, the respondents’ non-compliance with this court’s
orders of 13 November 2014 and 27 February 2015, was wilful and mala
fide;
(b) subject to 5 below, whether, in relation to the
matters identified in 4 below:
(i) there was non-compliance with this court’s
orders as at 21 April 2015;
(ii) if so, whether such non-compliance was wilful
and mala fide.
3. The
matters referred to in 2(a) above are the following matters on the
schedule attached hereto as ‘X’,
namely matters 302, 303,
360, 363, 370, 398, 400, 415, 417, 428, 429, 430, 448, 541, 554, 555,
556, 557, 564, 569, 570, 577, 582,
583 and 585.
4. The matters referred to in 2(b) above are
all matters on the said schedule other than those identified in 3
above.
5. The applicants shall, within two weeks of
this order, file a notice stating whether and to what extent they
elect
to proceed with Part B relief in respect of the matters
contemplated in 2(b) read with 4 above. To the extent that the
applicants
elect not to proceed with Part B relief in respect of some
or all of the said matters, the referral in 2(b) shall lapse.
6. If the applicants elect to proceed with
Part B relief in respect of some or all of the matters contemplated
in 2(b)
read with 4 above, they shall have the duty to present oral
evidence first on the alleged non-compliance with the orders in
relation
to those matters.
7. The respondents shall have the duty to
present oral evidence first on the issues of wilfulness and mala
fides contemplated
in 2(a) and, to any extent applicable following
the applicants’ said election, 2(b)(ii) above.
8. Within one month of the filing of the
notice in 5 above, the parties shall make discovery under oath of all
documents
relevant to the issues in 2(a) and, to any extent still
applicable, 2(b) above. The provisions of rule 35 shall apply
to
such discovery and to the inspection and production of documents.
9. The oral evidence shall be that of such
witnesses as the parties respectively choose to call, provided that,
in respect
of evidence of a person who has not made an affidavit in
the proceedings and in respect of evidence by a deponent not already
contained
in such deponent’s affidavit, a witness statement by
the person or deponent, setting out the evidence in question, shall
be filed in accordance with the following timetable, namely:
(a) by the applicants in relation to the issue in
2(b)(i) (to any extent still applicable) – four weeks prior to
the
hearing;
(b) by the respondents in relation to the issues in
2(a) and 2(b)(i) and (ii) (to any extent still applicable) –
three
weeks prior to the hearing;
(c) by the applicants in relation to the issues in
2(a) and 2(b)(ii) (to any extent still applicable) – two weeks
prior
to the hearing.
10. Notwithstanding 9 above, the court may at
the hearing, on good cause shown, permit a person to be called
despite
the fact that no statement has been served in respect of his
or her evidence.
11. Either party may subpoena a person to
give evidence at the hearing, whether or not such person has
consented to furnish
a statement.
12. The fact that a party has served a
witness statement or subpoenaed a witness shall not oblige such party
to call
the witness concerned.
13. If a deponent or witness is not called to
testify, the affidavit or statement of such deponent or witness shall
be
disregarded in the determination of the issues referred to oral
evidence.
14. Not later than one week before the hearing of Part B
the parties shall meet and file a list identifying (i) those
matters
which both sides agree are still outstanding; (ii) agreed
particulars to why those matters are still outstanding, alternatively
particulars of the parties’ respective allegations as to why
those matters are still outstanding; (iii) those matters which
the
applicants allege still to be outstanding but which the respondents
allege to have been finalised. Witnesses called by the
parties may be
examined and cross-examined with a view to resolving any factual
differences in regard to the said list.
15. The applicants shall pay 50% of the
respondents’ costs in respect of the appearance on 27 August
2015 and the
preparation of heads of argument relating to that
appearance, including the costs of two counsel.
16. Save as aforesaid, costs shall stand over
for determination at the hearing of Part B.
ROGERS
J
APPEARANCES
For Applicants : Mr D
Simonsz
Instructed by :
Eisenberg De Saude
Suite 2304, 23rd Floor,
Absa Centre
2 Riebeeck Street
Cape Town
For Respondents :
Messrs MA Albertus SC and G Papier
Instructed by : The
State Attorney
Liberty Life Building
22 Long Street
Cape Town
[1]
The following clients by list number (the list
numbers in this judgment are as per the first column of the
consolidated schedule
of 7 April 2015 as updated by the applicants
from time to time – these numbers, unlike those in the second
and third columns,
have remained constant):
list
1
: 234;
list
2:
302, 303, 360, 362, 363, 370;
list
3
: 392, 400, 406, 407, 414, 415, 417,
422, 428, 429;
list 4
:
430, 448;
list 5
:
541;
list 6
:
553;
list 7
:
555, 556;
list 9
:
564, 569, 570, 577, 582, 583, 584;
list
10
: 585.
[2]
Clients 302, 303, 360, 363, 370, 398, 400, 417,
429, 430, 448, 541, 554, 570 and 585.
[3]
Client 428.
[4]
Clients 415, 555, 556, 557, 564, 569, 577, 582
and 583.
[5]
Clients 406, 407, 414 and 422.
[6]
Client 234.
[7]
Client 392.
[8]
Clients 357, 358, 368, 369, 456, 457, 458, 459,
553, 560, 561, 562, 563, 571, 572, 573, 574, 578, 579, 580, 581,
586, 587 and
588.