Wednesday 6 April 2011

R6bn lawsuits hang over Home Affairs

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

THE Department of Home Affairs is being sued for R6,8billion, with victims of identity fraud and foreigners wrongfully detained demanding about R414million in damages, according to its annual report.

Oct 1, 2010 | Anna Majavu and Sapa | 7 comments

"Immigration claims arise out of unlawful arrests and detention of illegal foreigners, as well as damages arising out of failure by the department to timeously make decisions on permits," the department says.
The department's director-general, Mkuseli Apleni, however, told journalists in Pretoria earlier: "The [R6billion] of legal claims is only a probability... the public must be aware of this, we want to be transparent."
The department has received a negative audit opinion for the ninth year in a row. Its annual report, tabled yesterday in Parliament, revealed R321million in irregular expenditure.
Auditor-General Terence Nombembe gave Home Affairs a qualified opinion, with emphasis of matter.
Nombembe said he could not verify whether R1,6billion worth of assets really existed. He also found that the department is embroiled in lawsuits, with different people making claims of nearly R7million against it.
He said a further R3,2million of overtime payments to Government Printing Works (GPW) staff (who fall under the department) was irregular spending.
"Overtime by GPW employees exceeded 10 hours per week" - contravening labour laws," said Nombembe.
Since 2001, Home Affairs has been given six qualified opinions and three "disclaimers" or totally negative opinions.
Its former director-general, Mavuso Msimang, who was in charge of the department during the audit period, promised Parliament every year that Home Affairs would get a clean audit "next time".
It now seems it will be up to the new D-G, Mkhuseli Apleni, to make that happen.
But Apleni yesterday downplayed the department's negative opinion.

http://www.sowetanlive.co.za/news/2010/10/01/r6bn-lawsuits-hang-over-home-affairs

Tuesday 5 April 2011

Home Affairs' bad finances (again)

Another year, another Home Affairs horror

Oct 13, 2010 | Anna Majavu | 11 comments

THE Department of Home Affairs has promised Parliament again it will get its books in order next year.

The department, with its annual budget of R5,2billion, was grilled by Parliament's Home Affairs portfolio committee yesterday after it got its ninth negative audit opinion this year.
Home Affairs director-general Mkuseli Apleni insisted that they were on the right track.
"The minister indicated that the department would achieve an unqualified audit within two years," Apleni said. "We are still not there but the indication is clear that we will be able to achieve this target."
Home Affairs had aimed at developing four centres of excellence - offices where everything runs smoothly - but had only been able to create two.
When asked why he could not even ensure that four centres were functioning at a very high standard, Apleni said: "We are also dependent on the Public Works Department for improving our buildings."
Apleni admitted that "pushing back the frontiers of fraud and corruption" was a "significant challenge".
But he downplayed Home Affairs' unauthorised expenditure of R99,8million, saying he hoped Parliament's standing committee on public accounts (Scopa) would write this amount off.
But Scopa chairperson Themba Godi told Sowetan that while the Treasury had written to them about the R99million unauthorised expenditure, he had not received any documents from Home Affairs to help them decide whether this amount could be written off.
MPs asked why Home Affairs promised last year to have a register of their R1,6billion assets in place by November 2009 but failed to do so.
Apleni said: "Unfortunately, the department has been moving at a slow pace. We are saying there has been an improvement."
Home Affairs also ran up R320million in "irregular" spending.
Apleni explained that R261million of that was paid to GijimaAst to develop an online ID system. Home Affairs has since cancelled the contract.

http://www.sowetanlive.co.za/news/2010/10/13/another-year-another-home-affairs-horror

Monday 4 April 2011

Home Affairs Backlog continues

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

 

Immigration Practitioners’ Forum of SA*| 03 April 2011 09:19





Many erroneous permits issued

The Forum of Immigration Practitioners (FIPSA) welcomes recent statements by the Department of Home Affairs regarding the elimination of the backlog related to temporary residence permits.

Our collective experience is that many permits which were submitted during 2009-2010 are unaccounted for by the department, and despite resubmission of copies together with the submission receipts, many of these permits remain ”lost”. It is estimated that at least 20 000 applications are lost or unaccounted for after these were submitted to the department over the last 18 months. There have been a number of court cases around this issue in the last few months which have been necessitated by the desperation of applicants.

We further place on record that there has been a noticeable decline in the standard of adjudication and that a high percentage of permits , 40-45% are issued with erroneous endorsements , mainly incorrect dates, incorrect workplace and in some cases permits are issued to the wrong person. This places the holder of the permit in an extremely difficult position, as they may be considered to be illegal if the status and conditions differ from the status ascertained by the department’s inspectors or police. Efforts to correct these errors take a long time and cause extreme prejudice to the applicants and their employers.
We note that there has not been a general directive or public announcement regarding the legal status of applicants who have not yet received the permits after the 30 day finalisation period which would allow them to commence the activities for which they applied for , while they await the outcome of their application. The result of this state of affairs is that many applicants have lost jobs, had bank accounts closed and have been treated as criminals due to these delays.

We call on the department to institute an audit to ascertain how many permits have been lost and/or incorrectly issued and to allow applicants the opportunity to approach the department to have their erroneously endorsed permits corrected through an expedited process.
This report was prepared by Immigration Practitioners’ Forum of SA

http://www.moneyweb.co.za/mw/view/mw/en/page295023?oid=534512&sn=2009+Detail&pid=287226


Free Zim Dispensation costs R419 million plus...

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****


The waiver of the permit fee for illegal Zimbabwean immigrants represents a financial loss of a whopping R419 158 240 to home affairs.    That is a lot of money to waive for a department that is in a bad financial condition.  It represents almost 10% of home affairs' R5bn budget.   In addition there is the opportunity cost of resources that have been redeployed from other sections within home affairs to work on the Zimbabwe dispensation project.   Plus the cost of the consultants that are working on the project.  The total economic cost of the dispensation could easily be in the region of R1bn.

According to home affairs, 275 762 illegal Zimbabwean immigrants have applied for legalisation.  The R1 520 permit fee that immigrants usually pay has been waived for them.

I'm not sure whether they pay the repatriation deposit (R2 040 when I immigrated 7 years ago).

At the same time, the cost of a re-issued ID has been hiked by 600% from R20 to R140.  A passport has been hiked by 110% from R190 to R400.

National Treasury is one of the best run departments in this country, but it baffles me that they approved the permit fee waiver for the illegal Zimbabweans.  Illegal immigrants spend at least R2 000 per year to maintain their illegal status.  This is in the form of bribes to immigration officials, bus drivers and police.  Some of them had to travel to the border every 3 months to get their passports stamped.  They can afford the R1 520 permit fee.

The department probably thought it was doing an act of goodwill, but how are taxpayers and South Africans meant to feel when the cost of their documents more than doubles and the illegal Zimbabweans get legalised for free?

Saturday 2 April 2011

Home Affairs clears backlog

Permanent residency: 4 601 approved, 1 943 rejected.  30% rejection rate
Temporary residency: 64 589 approved,  5 627 rejected. 8% rejection rate.
Total rejections = 7570
3302 "special cases" probably refers to appeals because the department's numbers of rejections and approvals equals the total number of applications.   Therefore 44% (almost half) of the total rejections are being appealed - and will probably be appealed successfully as the department is known for rejecting applications for reasons that are not in line with the immigration act.   The numbers also indicate that the adjudication in the permanent residency section is not being done properly if there is such a high rejection rate.



Compiled by the Government Communication and Information System
Date: 30 Mar 2011
Title: Home Affairs clears permit backlog
--------------------

Pretoria - The Department of Home Affairs has cleared the backlog in permits for foreign nationals who had applied for permanent and temporary residency in South Africa.

Home Affairs Director-General Mkuseli Apleni said measures taken to eliminate the backlog that had developed over the past couple of years had been successful, and the time frame by which the department had committed itself to clear the backlog - the end of the current financial year, 31 March - had been met.

"Applications received up until the end of January 2011 have therefore been adjudicated and permits have been dispatched to the various regional offices. Applications made in February and March this year are currently being processed, the outcomes of which will be communicated to applicants in due course," he said.

In its efforts to address the backlog, the department centralised the process of adjudicating permits. The adjudication is now done at a central hub in Pretoria instead of regional offices.

Additional human resources and IT capacity, as well as the use of effective and efficient project and operations management methods also contributed to resolving the backlog, he said.

"It was necessary to centralise the adjudication of permits so that the department could assume full control of the process while increasing its efficiency, effectiveness and accountability. The possibility for bribery and corruption in the process has therefore been significantly reduced," Apleni explained.

After the applications from the regional offices were consolidated, the permit backlog stood at 56 302.

This included the backlog that had accumulated before November 2010. New applications received up to the end of January 2011 stood at 23 751, putting the total number of applications received at 80 053.

Breaking down the figures further, Apleni said the department adjudicated 6 535 permanent residence permits from foreign nationals, of which 4 601 were approved and 1 934 rejected.

With regards to temporary residence permits, 70 216 permits were adjudicated with 64 589 approved and 5 627 rejected.

There were 3 302 "special cases" for both types of permits, where the application will have to be reviewed - a process that includes further consultations with the client.

"Although all permits for applications up to the end of January 2011 have been dispatched to the respective offices, applicants must allow a grace period of 14 working days (20 April 2011) from the end of March before they lodge enquiries with the contact centre," he added.

With regards to the processing of applications from Zimbabwean nationals wanting to regularise their stay in South Africa, Apleni said this was process was still being finalised.

After consultations with the Zimbabwean government, the department had agreed to finalise the process by 31 July 2011.

Apleni said the department had adjudicated 119 009 of the more than 275 000 applications from Zimbabwean nationals.

A further 156 753 applications still had to be adjudicated.

The department estimates that it would take 53 working days to complete the adjudication, at the rate of 3 000 adjudications per day.

Of the applications that are still to be adjudicated, 116 960 of them had outstanding information - which included passports, fingerprints and other supporting documents.

The department would be communicating with these applicants requesting them to furnish their outstanding documents or information.



Reported by: South African Government News Service

http://7thspace.com/headlines/377400/south_africa_home_affairs_clears_permit_backlog.html

More Power for Public Protector

Wednesday, 24 November 2010

Public Protector
Adv. Thuli Madonsela is shaking up the position of Public Protector by being true to the position.

The Public Protector has launched a new set of rules that will ensure it has more powers to fulfil its mandate - protecting the South African public.

"We find it unacceptable that some state organs still give us the run-around when we seek answers on behalf of distressed or aggrieved members of the public.

"The people who come to my office for help often have no financial means to take the mighty state to court and come to me as a last resort, believing that my office can provide them with justice free of charge and quicker than tribunals and courts," said Public Protector Thuli Madonsela.

The new rules will strengthen the Public Protector's powers to enforce accountability from state organs and ensure a speedy resolution of cases.

They are in accordance to section 7 (11) of the Public Protector Act of 1994, which states that the Public Protector may make rules in respect of matters that have bearing on investigations, provided that such rules are published in the Gazette and tabled in the National Assembly.

The new rules will be published in the Government Gazette early next year.

Addressing the National Press Club in Pretoria on Wednesday, Madonsela warned that her office would not hesitate to use its full powers to exact compliance with the Constitution and the law.

Madonsela said she would use everything in her means, including subpoenas and orders of contempt of the Public Protector, to deliver justice to the South African public.

During her recent outreach programme, the Public Protector assured citizens that they could trust her office with confidential information about corrupt activities.

She appealed to the public to report poor service and conduct by organs of state, suspected corrupt activities and other forms of maladministration in state affairs.

On average, the Office of the Public Protector received about 15 000 complains per year. It takes from couple hours to three months to resolve a single case, depending on its nature.
Sourced by SA - The Good News via BuaNews
http://www.sagoodnews.co.za/politics/more_power_for_public_protector.html 

Friday 1 April 2011

PAIA requests and Home Affairs

If the requester decides that discretion is the better part of valour and to await an eventual outcome, the problems increase if there is a negative decision because the requester may well be out of time to exercise his or her other rights against the Department. The reality in dealing with Home Affairs is that one can easily wait for three or four months, if that, to get the eventual decision and access from the Department to the sought-after information...


Ultimately, one of the purposes of the access to information which is held by the state, as provided by the Promotion of Access to Information Act, 2 of 2001, [“PAIA”], is to obviate unnecessary litigation and the accompanying waste of State and other resources. Section 25(1) of PAIA provides that “the information officer to whom the request is made must …” provide the required information “as soon as reasonably possible but, in any event, within 30 days after the request is received.”
PAIA Requests and Home Affairs

Chris Watters Attorneys, Immigration Law Committee of the Law Society of Northern Provinces
Ultimately, one of the purposes of the access to information which is held by the state, as provided by the Promotion of Access to Information Act, 2 of 2001, [“PAIA”], is to obviate unnecessary litigation and the accompanying waste of State and other resources. Section 25(1) of PAIA provides that “the information officer to whom the request is made must …” provide the required information “as soon as reasonably possible but, in any event, within 30 days after the request is received.”
Unfortunately, it is notorious that the Department of Home Affairs simply does not comply with such requests in a timely manner. Evidence suggests instead that the Department is not however refusing or failing unreasonably to provide the information. The position appears to be that the Department and/or its information officer do not have the capacity to process these applications or inquiries within the time frames provided for in PAIA. In terms of PAIA, as read with the Public Service Act, the Information Officer of the Department is the Director General. However, the Department’s officials just cannot get the PAIA requests/applications out of the Director General’s office and onto the correct section in the rest of the Department in anything like the time provided for in PAIA. It appears too that in some, if not all, instances the Department’s legal section is required to furnish an opinion to the relevant section as to what is to be disclosed.
Section 26 of PAIA provides that if the 30 days provided for in Section 25 are insufficient to comply with the request, then the information officer may only extend that period if the reason for the period she or he really needs is one as set out in Section 26(1)(a) – (d) of PAIA. These reasons are that a large number of records, divisions, offices and/or public bodies are involved in responding to the inquiry. In all such cases the justification for the needed extension has to be reasonable. In addition, the requester has to consent in writing to the extension [Section 26(1)(e)]. To obtain that consent the Information Officer must notify the requester in writing before the first 30 days expire [Section 26(2)] of the reasons for the needed extension, how long the needed extension will be – but which cannot be for more than a further 30 day period – and that the requester can appeal that extension [Section 26(3)].
In terms of Section 27 of PAIA, if the information is however not provided within 30 days and no extension is obtained, the Department is “regarded as having refused the request” which then compels the requester to appeal such refusal.
Section 74(1)(a) of PAIA provides that a requester has a right of “internal appeal” where the Information Officer has refused a request for access. In terms of Section 75(1)(a)(i) of that Act, the appeal must be lodged “within 60 days” of the effective refusal – which period can be extended but only if there is “good cause.”  But of course one cannot appeal (meaningfully) unless the requester knows why access has been refused. And if the request has not been refused by the Information Officer but is rather making its way through the Department’s corridors albeit somewhat slowly, can one appeal the purported “refusal.”  So one has less than 60 days to get reasons. And if one then uses Section 5(1) of the Promotion of Administrative Justice Act, 3 of 2000, [‘PAJA’] to demand the reasons for the “refusal,” the Department is given 90 days to respond quite aside from the Department because the requester is now asking for reasons for refusing a request that has not been refused, in reality
Of course, under Section 6(2)(g) of PAJA, the failure to take a decision is reviewable by the High Court. But before that right arises Section 7(2) of PAJA prescribes that no Court shall review administrative action unless “any internal remedy …has first been exhausted.” This ouster clause can only be got around if there are “exceptional circumstances” [Section 7(2)(c) of PAJA].
If the requester decides that discretion is the better part of valour and to await an eventual outcome, the problems increase if there is a negative decision because the requester may well be out of time to exercise his or her other rights against the Department. The reality in dealing with Home Affairs is that one can easily wait for three or four months, if that, to get the eventual decision and access from the Department to the sought-after information.
Ironically the problems posed by the PAIA-process for requesters are compounded when regard is had to the time frames dictated to requesters in the Immigration Act, for example, to review or appeal a decision by the Department which affects them [Section 8 of the Immigration Act, 2002, as amended]. All too often, the requester first needs the information held by the Department in order to prepare an informed appeal or review. The time periods provided for in Section 8 within which to seek an internal appeal or review of a decision vary between the time it takes for your plane to leave South Africa again (a matter of hours) and 10 working days [Section 8(1), 8(4) and 8(6) of the Immigration Act] – none of which interfaces comfortably with the requirements of PAIA and PAJA.
It is hoped that the Information Officer’s obligations in terms of Section 195(1)(g) of the Constitution coupled with the requester’s rights to dignity and associated basic rights, may help to unravel the conundrum of how a requester gets access to information from the Department of Home Affairs in a timely manner.

http://www.roylaw.co.za/home/article/paia-requests-and-home-affairs/pageid/immigration-law




Home affairs sued for dilly-dallying

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

 This is an application brought in terms of Rule of Court 49(11). On 18 December 2008 the first to fourth respondents (home affairs) were ordered by Pakade J (judge)  inter alia to issue applicant with a work permit as provided for by section 19 of the Immigration Act, no. 13 of 2002 within 30 days from the date of that judgment as set out in paragraph 1.1 of the Court Order.  

It took just short of 7 months for second respondent (home affairs) to come to a decision refusing the initial application.  The same lack of urgency characterised the first respondent’s approach to applicant’s internal appeal against this decision and eventually applicant launched an urgent application for review of the first respondent’s failure to take a decision.  It appears from the judgment of Pakade J that there had been an unreasonable delay in the processing of applicant’s internal appeal and that in his view and in view of the inordinate delay suffered by applicant, applicant would suffer further prejudice unless the court intervened.


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
GRAHAMSTOWN
CASE NO.: 41/2009               DATE: 12 FEBRUARY 2009
In the matter between:
Z NCUBE                                 APPLICANT
and
DEPARTMENT OF HOME AFFAIRS &
5 OTHERS                               RESPONDENTS

JUDGMENT

PICKERING J:

This is an application brought in terms of Rule of Court 49(11). On 18 December 2008 the first to fourth respondents were ordered by Pakade J inter alia to issue applicant with a work permit as provided for by section 19 of the Immigration Act, no. 13 of 2002 within 30 days from the date of that judgment as set out in paragraph 1.1 of the Court Order.  Pakade J also dismissed, together with a punitive costs order, a so-called supplementary or second review application which was filed by applicant after argument had been heard on the main application and judgment thereon reserved, but before the delivery of that judgment.

Applicant in due course filed a notice of intention to apply for leave to appeal against this decision as well as the costs order.  Respondents in turn filed a notice of intention to apply for leave to appeal against the judgment of Pakade J on the main application.   The noting of these appeals had the effect obviously of suspending execution of the judgment and order of Pakade J, hence the present application in which applicant seeks leave only to execute paragraph 1.1 of the Court Order.  The present application is opposed by the respondents.

The details of the matter which led up to the judgment of Pakade J are fully canvassed in his judgment and it is not necessary to set them out here again.  Suffice it to say that the matter has a long history.  Applicant, a Zimbabwe High School English teacher, applied as far back as January 2008 for a requisite work permit enabling him to take up a post as English teacher at Molteno High School.  It is not in dispute that the position was offered to him then and that the post is still currently open for him subject only at him being granted a work permit.  It can also not be seriously disputed that applicant’s application for a work permit was dealt with in an extremely dilatory fashion by the relevant respondents and their officials.  It took just short of 7 months for second respondent to come to a decision refusing the initial application.  The same lack of urgency characterised the first respondent’s approach to applicant’s internal appeal against this decision and eventually applicant launched an urgent application for review of the first respondent’s failure to take a decision.  It appears from the judgment of Pakade J that there had been an unreasonable delay in the processing of applicant’s internal appeal and that in his view and in view of the inordinate delay suffered by applicant, applicant would suffer further prejudice unless the court intervened.

As stated by the learned judge applicant was sent from pillar to post by the respondents’ officials without actually ever being assisted.  There were countless unanswered letters as well as unanswered telephone calls.  Apart from categorising the delays as being unreasonable, Pakade J also chastised respondents and their officials for what he called “their delaying tactics coupled with unjustified arrogance.”

It is fortunately not necessary in the view that I take of the matter to deal with the further progress of the matter including the dismissal by Pakade J of the so-called supplementary application or second review application.  In SOUTH CAPE CORPORATION (PTY) LTD v ENGINEERING MANAGEMENT SERVICES (PTY) LTD 1977(3) SA 534 (AD) Corbet JA dealt with the principles applicable to an application such as the present.    At 545C-G he stated as follows:
“The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised. [See VOET 49.7.3 RUBY’S CASH STORE (PTY) LTD v ESTATE MARKS AND ANOTHER (supra) at p.127].  This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf FISMER v THORNTON 1929 AD 17 at p. 19).  In exercising this discretion the Court should, in my view, determine what is just and equitable in all the circumstances and, in so doing so, would normally have regard, inter alia, to the following factors:
(1)    The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal, (respondent in the application) if leave to execute were to be granted;
(2)    the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal, (applicant in the application) if leave to execute were to be refused;
(3)    the prospects of success on appeal including more particularly the question as to whether the appeal is frivolous or vexatious, or has been noted not with the bona fide intention of seeking to reverse the judgment, but for some indirect purpose eg. to gain time or harass the other party, and
(4)    where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience as the case may be.”

Applicant has submitted that he will indeed suffer irreparable harm and prejudice if leave to execute is not granted.  So too, he submits, will the Molteno High School and those learners in Grade 7, 10, 11 and 12 who, it is common cause, were without proper English instruction for a large part of the 2008 academic year.  It is not in dispute that this school wishes to employ applicant as he was the best candidate for the post.  Should applicant not receive a work permit the school will in all probability be obliged to cut its losses and to employ a less qualified English teacher in his stead, if indeed such less qualified teacher is available. 

That applicant too will be prejudiced is in my view, as was submitted by Mr Budlender who appeared for the applicant, manifest.  Until such time as any appeal is finally disposed of or the matter otherwise finally determined applicant will be unable to be employed.  If the application for leave to appeal is only heard during the last week of this term, as apparently was indicated to counsel by Pakade J, and if leave to appeal is in due course granted it is extremely unlikely that any such appeal would be disposed of before September or October at the earliest.  In effect therefore applicant will remain unemployed for the remainder of the school year.  As pointed out by Mr Budlender, in terms of section 19(2) of the Immigration Act a work permit is job specific.  Thus, if the order remains suspended, and respondent’s appeal is eventually dismissed, applicant’s victory will be a mere brutum fulmen or a pyrrhic victory .  He would be entitled to a work permit which he could not use as his contemplated post would by then in all probability have been filled.  As was submitted by Mr Budlender this would render the entire review application meaningless, a mere exercise in futility for applicant. 

On the other hand, were applicant to be granted a work permit in the interim, he would be able to support both himself and his family whilst performing a useful service to the community.  It is somewhat difficult to understand in these circumstances what prejudice the respondents would suffer should the work permit be granted.  In this regard respondents allege in their reply that it would be prejudicial to allow a contractual relationship to come into being while the appeal is pending and that it would “send out a signal” to persons in a similar position to applicant that they can circumvent the Immigration Act and its regulations. Quite why it should be so undesirable for applicant to enter into a contractual relationship with the school pending the final determination of the appeal escapes me. The school is desirous of having applicant’s services.  It is prepared to live with the consequences of employing him pending the final determination of the matter.  It is also relevant that the 5th respondent, the Minister of Education, chose not to oppose the relief sought by applicant in the main application.  In my view, had the Minister had any principled objection to applicant’s appointment she surely would have said so.

As regards the alleged circumvention of the Act this submission is in my view devoid of merit.  Applicant has a judgment in his favour which he seeks by legal means to enforce pending the respondents’ appeal.  Whatever the respondents’ view of the correctness or otherwise of Pakade J’s judgment may be there can in these circumstances in my view be no question of a circumvention by applicant of the Act.  Applicant has throughout pursued his legal remedies, both internally and in court.  The fact that respondents may disagree with Pakade J’s finding as to the unreasonableness of their delays is in the circumstances quite irrelevant in my view to the issue of prejudice.

I should mention that respondents initially sought to rely in the context of prejudice on applicant’s alleged illegal presence in South Africa.  It is surprising that they should have done so.  Applicant had been granted permission to remain in South Africa in terms of a document known as Form 20.  When that expired early in January 2009 applicant’s attorneys wrote to respondents requesting that it be renewed.  Applicant was given an undertaking that the form would be renewed.  Indeed in the answering affidavit in this application attested to by Mr Lackay an assistant director of the Department of Home Affairs he undertook to attend thereto as a matter of urgency. As of today applicant had still not been advised of any such extension despite this undertaking.  At the commencement of his argument, however, Mr Brooks for the respondents stated that he had in the meantime managed to ascertain that all that applicant had to do was to contact a Home Affairs Office and the form would be extended.  In these circumstances the initial reliance by respondents on applicant’s alleged illegal presence in South Africa was cynical in the extreme and would appear to have been advanced merely in an attempt to defeat his application.

Respondents have, in my view, failed utterly to show the existence of any prejudice to them should applicant be granted a work permit pending the finalisation of the appeal.  Should leave to appeal eventually be granted by Pakade J and should such appeal eventually succeed then the work permit would obviously lapse. 

This brings me to the issue of respondents’ prospects of success on appeal.   Much was made by Mr Brooks of what he said was the failure by applicant to deal properly with this issue in his founding affidavit.  Mr Brooks stressed that this submission was not aimed at applicant’s appeal but at respondents’ intended appeal.  He submitted that the allegations contained in applicant’s founding affidavit were deficient.  Paragraph 15 of that affidavit reads as follows:
“The application for leave to appeal will be adjudicated in due course, it will be argued by my legal representatives that there is no merit in respondents’ application for leave to appeal in that there is no reasonable prospect that another court would differ from the conclusion reached by this court.”
In my view applicant needed to say no more than he did.  The issue of reasonable prospects of success in the circumstances of this case is a legal one, and it would not in my view have been appropriate nor was it necessary to burden the affidavit with legal argument in that regard.

I turn then to the issue of respondents’ prospects of success on appeal, it being common cause that applicant’s prospects in respect of his appeal are irrelevant for present purposes.  Because the application for leave to appeal has not yet been dealt with by Pakade J it appeared to me that I was in somewhat of an invidious position.  Whether I am of the view that respondents have no prospects of success on appeal or vice versa Pakade J may well be of a different view.  This seems to me to illustrate the desirability of the judge who granted the order dealing also with any Rule 49(11) application.  This is all the more so when the application for leave to appeal has not yet been heard.  Be that as it may Mr Brooks submitted in effect that the judgment of Pakade J was so clearly wrong that applicant had no reasonable prospects whatsoever of resisting respondents’ appeal against it.  Although I obviously have not had the benefit of full argument such as would have been addressed to me were I sitting as a court of appeal I am constrained to disagree with his submissions.  Indeed Mr Budlender put forward compelling arguments in support of the judgment.  Fortunately, however, this is not an issue upon which I am called upon to make any definitive finding.  In the matter of SORIC PROPERTIES HILLBROW (PTY) LTD AND ANOTHER v VAN ROOYEN 1981(3) SA 650 (W) referred to by Mr Budlender, McEwan J stated as follows at 657H-658B:
“Coupled with that argument, however, was a further argument that the respondent has no reasonable prospects of success on appeal.  It was urged that on the respondent’s own version she breached the lease and the first applicant was entitled to cancel it.  At first blush that argument sounds convincing.  However, Mr Suzman pointed out that on the authorities it is not a true test to determine whether or not there is a reasonable prospect of success in the appeal.  The court in proceedings of this nature is not called upon to enquire into the whole case, or to attempt to evaluate the prospects of success on appeal. Only if the court is satisfied that the appeal has minimal prospects of success or is hopeless, then the court will take that factor into account and may draw an inference from it that the appeal was noted mala fide or for the purposes of delay.  That principle is to be found set out in more detail in two cases referred to by Mr Suzman, namely BYRON v ANDERSON & COHEN 1955(3) SA 590 (D) at 596, especially the quotation from BAM v BHADHA (2) 1947(1) SA 399 (N) and WOOD NO v EDWARDS AND ANOTHER 1966(3) SA 443 (R) at 446.” 

I am not persuaded by anything that Mr Brooks has submitted that the judgment of McEwan J in this respect is wrong.  Nothing said therein by the learned judge is in conflict with the dictum of Corbett JA in the SOUTH CAPE case supra to which I have referred above.  It is noteworthy in this regard that far from referring to the necessity for reasonable prospects of success Corbett JA makes reference only to the prospects of success and stresses in particular the issue as to whether the intended appeal is frivolous, vexatious or mala fide. 

Having heard Mr Brooks’ submissions on the merits I cannot say that the respondents’ intended appeal is frivolous or vexatious.  I am prepared to accept for present purposes that the appeal is arguable and that the noting thereof cannot be said to have been done mala fide for the purposes of delay.  The issue of the prospects of success on appeal is, however, only one of the issues which I must consider in the exercise of my discretion.  I must decide, having regard to all the factors set out in the SOUTH CAPE case supra whether it is just and equitable that leave to execute be granted.  In the peculiar circumstances of this case the issue of prejudice and the balance of convenience looms large.  In my view even assuming a degree of prejudice on the part of respondents, the balance of convenience is overwhelmingly weighted in favour of applicant.  He has shown manifest prejudice should his application be dismissed whereas respondents in my view have shown little or none at all, should it be granted.  On the face of it applicant has thus far been ill served by respondents’ officials who entangled him in a bureaucratic web from which he must have despaired of ever freeing himself.  He is entitled in my view to the order which he seeks, suitably amended however to make it clear that the work permit given to him will lapse should the issues between himself and respondents be determined in respondents’ favour.

That leaves the issue of costs.  The general principle in applications of this nature is that in the event of the application succeeding the costs should be made costs in the appeal.  I am of the view, however, that the circumstances of this case are such as to justify a departure from the general rule.  In my view the respondents’ opposition to the application was baseless.  Their opposition has led to entirely unnecessary litigation.  A realistic and objective view of the matter would and should in my view have led to their consenting to the relief sought.  As I have said no prejudice whatsoever would have been occasioned to them thereby.  Mr Budlender has submitted further that in view of certain irresponsible allegations made by the respondents concerning the honesty of applicant as well as having regard to their conduct with regard to the extension of Form 20 such costs should be awarded on the scale as between attorney and client.  Although this submission is not without some degree of merit and although I have given it considerable thought I am not persuaded that such an order would in fact be justified.

In the result the following order will issue:
1.    Notwithstanding any application for leave to appeal and/or appeal by any of the first to fifth respondents against the order granted by this court on 18 December 2008 and pending the final determination of the issues between the parties the second respondent is directed to give effect to paragraph 1.1 of the order granted by this Court on 18 December 2008.
2.    The second respondent is directed to issue the applicant with a work permit as provided for by section 19 of the Immigration Act no. 13 of 2002 within 6 days of this order.
3.    Such work permit shall lapse immediately should the issues between the parties be finally determined in favour of the respondents.
4.    The first to fourth respondents are ordered to pay the costs of this application jointly and severally the one paying the others to be absolved.


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JD PICKERING
JUDGE OF THE HIGH COURT




http://www.saflii.org/za/cases/ZAECGHC/2009/4.html