http://www.saflii.org/za/cases/ZAWCHC/2011/437.html
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NUMBER: 2178/2011
In the matter between:
EISENBERG
& ASSOCIATES
…..................................................................................First
Applicant
COLIN
SLESSOR
…................................................................................................Second
Applicant
AMOS
SERFATY
….....................................................................................................Third
Applicant
BRIAN
GANSON
…...................................................................................................Fourth
Applicant
IMMIGRATION
MANAGEMENT SERVICES
SA
t/a VISA ONE
…......................................................................................................Fifth
Applicant
v
DIRECTOR-GENERAL
OF THE
DEPARTMENT
OF HOME AFFAIRS
…...................................................................First
Respondent
MINISTER
OF HOME AFFAIRS
….....................................................................Second
Respondent
ACTING
CHIEF DIRECTOR: PERMITS
….............................................................Third
Respondent
DIRECTOR:
VISA AND TEMPORARY RESIDENCE
…......................................Fourth
Respondent
DIRECTOR
OF IMMIGRATION
SERVICES:
WESTERN CAPE
…......................................................................Fifth
Respondent
Heard:
16 November 2011
Court:
Acting Judge J I Cloete
Delivered:
23 November 2011
JUDGMENT
CLOETE
AJ: Introduction:
[1] The 1st
and 5th
applicants
who are immigration practitioners ('the
applicants) seek
certain amended procedural relief from the respondents. The relief
sought by the
2nd
to 4th
applicants
(who were affected individuals) has fallen away. The nature of the
relief sought is to compel the respondents to: (a)
determine certain
outstanding temporary residence permit applications and/or review
applications and/or administrative correction
applications within 30
days; (b) determine any subsequent review and/or administrative
correction applications which might arise
from applications relating
to the outstanding temporary residence permit applications within 6
weeks of submission thereof; and
(c) obtain, at the respondents'
expense, any applications misplaced by them in order to give effect
to the aforegoing.
[2] The
relief is couched in the form of judicial review, alternatively for
a mandatory interdict. For purposes of the relief
sought 'determine'
means
to decide, deliver and immediately make available to the applicants
the 'determination'
in
each instance upon its arrival at the Cape Town office of the 1st
respondent.
[3] Although
the applicants seek relief against all 5 respondents, it is
essentially directed at the 1st
respondent
(who is responsible for the administration of the 3rd
to 5th
respondents)
and the 2nd
respondent
(who is the political functionary responsible for the Department of
Home Affairs, or 'DHA).
[4] The applicants' central
complaint relates to the failure of the respondents - who are
government officials generally in charge
of immigration-related
affairs in South Africa - to determine temporary residence permit
applications, review applications and
administrative correction
applications within a reasonable time.
[5] The applicants' attack is
not directed at any deliberate misrepresentations on the part of the
respondents, but at a consistent
pattern of administrative bungling
and a failure to comply with promised deadlines.
[6] The respondents deny that
the relief sought by the applicants is competent and further deny
any administrative bungling on
their part. They seek the dismissal
of the application.
Background
[7] There is a plethora of
detail in the papers, but the essential facts which are material to
the determination of the matter
appear to be the following.
[8] The backlog of applications
which is at the heart of this case began in May 2010. Initially the
applicants did not make anything
of the delay as they respected the
burdens placed on the respondents' time and ultimately expected the
applications which they
had made on behalf of their clients to
receive proper treatment.
[9]
Regulation 7(6) of the regulations pertaining to the Immigration Act
13 of 2002 ('the
Act) reads
as follows:
'(6) A foreigner who is in
the Republic and applies for a change of status or conditions
relating to his or her temporary residence
permit, or for an
extension of the period for which the permit was issued, shall
submit his or her application at least 30 days
prior to the date of
expiry of that permit...'
[10] The
regulation thus envisages that it will not take longer than 30 days
to finalise an application of this nature - it would
otherwise not
be required of an applicant for such an application to be filed 'at
least 30 days' prior
to the expiry of a current permit. An applicant may thus file such
an application on the 31st
day prior to
the expiry of a current permit and reasonably expect it to be dealt
with by the date of expiry thereof. This is not
seriously disputed
by the respondents.
[11] By
August 2010-2 months after the 30 day 'deadline'
the
applicants began making enquiries about the status of the
applications submitted. These enquiries were in the form of a number
of letters addressed and telephone calls made to a variety of
departmental officials including the 4th
and 5th
respondents.
Other than various promises made by certain of these officials that
the applications would receive attention, no
other response was
received by the applicants until 19 November 2010 by way of an email
addressed by the 4th
respondent
to, inter
alia, the
5th
respondent
and copied to them, in which they were advised that:
'The
applications mentioned in Mr Eisenberg's letter was [sic]
mostly
submitted well before we started with the centralisation of
adjudication. Some applications on the [Track
and Trace Online System] reflect
that the applications were only received and nothing further. Please
investigate and provide me with an update.'
[12] At around the same time
(on 18 and 25 November 2010) the DHA released media statements which
reflected the apparent seriousness
with which they regarded the
problems in their permit section. According to these media
statements substantial resources were
being allocated to deal with
the backlog problem and all applications for extensions of temporary
residence permits would be
finalised within 48 hours of submission.
[13] The media statement of 18
November 2010 contains the following:
'In
response to this impassioned plea from Minister Dlamini Zuma as well
as the huge cries for help by the affected sections,
the
following new measures have now been put in place to deliver faster
and Quality service delivery to businesses, foreign workers
and
students:
1.
Appointed a new Acting Chief Director-Permitting-Jacob Mamabolo,
based at
Headquarters in Pretoria to oversee the new process. His contact
numbers are as follows: (cell) 082 884 1868, (Tel) 012
810 7322,
E-mail: Jacob.mamabolo(S).dha.gov.za
2.
Mamabolo will lead a dedicated team of immigration officials, who
shall receive, adjudicate and immediately issue
such
permits from Headquarters.
3. All permits - study, work
or business permits - shall from now onwards be adjudicated and
issued from our Headquarters in Waltloo,
Pretoria'
…..........
The
department will do everything in its power to respond to the
Ministerial directive in an attempt to make everything possible
to
ensure foreigners can contribute meaningfully to the development of
our country without any obstacles through the timeous
issuance of
permits to all concerned.'
(Emphasis added.)
And
the second media statement of 25 November 2010 the following
'Pretoria
- Minister of Home Affairs, Dr. Nkosazana Dlamini Zuma has issued a
Departmental directive that all
foreigners seeking extensions to their individual permits in terms
of the provisions of the Immigration Act, 2002 be granted such
extensions within 48 hours.
This includes all permits excluding the Intra-Company Company
Transfer Permit.
[The
current delays in processing have] impacted negatively on the lives
of applicants who met the requirements of the Act by
applying within the reguired 30 day period.
By
granting extensions within 48 hours, the
applicants will be able to travel, work, study and conduct business
as stated in the initial terms and conditions of the permit
they
seek to extend.
Minister Dlamini Zuma's
directive is a consequence of a thorough analysis that identified
various logjams which previously acted
as impediments in the
Department's quest to expeditiously address applications for permit
extensions.
The directive by the
Minister follows various measures announced last week to centralise
the issuing and extension of all permits.
It is anticipated that the
additional measures being announced today will provide further
impetus to Government's drive towards
accelerating quality service
delivery to all citizens and foreigners alike....
To
underpin Minister Dlamini Zuma's directive that extensions of all
applicable permits be resolved within 48 hours, the
Department has now put in place the following measures:
A
dedicated email facility,
permit.extension@dha.gov
.za,
where foreigners can contact the Department to verify the status of
their applications for an extension. Applications will
still be
received in the Regional Offices.
The
creation of a dedicated fax line. 086
532 6320, to submit proof of application to expedite the issuing of
permits.
The
Department has also established a dedicated call centre
where
dedicated staff will assist foreigners seeking assistance. The
following are the dedicated contact numbers for the call
centre:
082 888 8328
082 809 5307
082 801 8766
079 519 3105
This new service will be in
operation from Monday 30 November 2010 and will be operational
during 07h00-16h00.
We are
confident that these measures will make a significant contribution
towards enhancing the Department's approach to the speedy
extension
or the issuing of new permits.' (Emphasis
added.)
[14] These
media statements notwithstanding and despite further correspondence
by the applicants to the respondents, the delivery
of copies of all
outstanding applications to the 3rd
and 4th
respondents
at their request, and verbal promises made to the 1st
applicant,
not a single application was determined within 48 hours, or for that
matter within a week or a month thereafter, by
the respondents.
[15] An
affidavit filed by Ms de Saude, the 1st
applicant's
candidate attorney, reveals the following.
[16] On 2
December 2010 the 4 respondent returned the telephone call of the 1
applicant's Mr Eisenberg ('Eisenberg)
and
instructed Eisenberg to transmit to him directly copies of the
acknowledgment of receipts, cover letters, passport title pages
and
last temporary residence permits of each applicant ('the
documents). These
were not to be sent to the general email address
permit.extension(g)dha.gov.za
which had
been set up in terms of the 2nd
respondent's
new adjudication process, but to the 4th
respondent's
email address.
[17] On the
same day Ms de Saude called one of the contact numbers
(+27828888328) published on the website of the DHA which number
was
also set up as part of the 2nd
respondent's
new adjudication process. She spoke with an 'Anton'
who
confirmed that within 48 hours of receipt of the documents, as a
result of this new adjudication process, all outstanding
applications would be finalised.
[18] On 3
December 2010 Ms de Saude transmitted to the 4th
respondent
the documents for 54 pending extension/renewal applications for the
1st
applicant's
clients.
[19] On the
same day Ms de Saude received two emails from the 4th
respondent's
email address, in which the 3rd respondent was copied. The first
email forwarded Ms de Saude's previous email in
which the documents
for the 54 extension/renewal applications were attached, to the
general
email
address. Ms de Saude then received an email from Ms Elzabe Fisher,
the personal assistant to the 4th
respondent,
advising her that the documents and any queries relating to
outstanding extension/renewal applications should be sent
to the
general
email
address. This was in direct contradiction to the 4th
respondent's
instruction a day earlier.
[20] On 8
December 2010 and as a result of a telephone conversation which
Eisenberg had had with a Ms Reyneke of the respondents,
Ms de Saude
transmitted the documents in respect of the 54 pending
extension/renewal applications, which she had previously conveyed
to
the 4th
respondent
on 3 December 2010, to Ms Reyneke.
[21] On 10
December 2010 Ms de Saude sent Ms Reyneke an urgent email regarding
the pending application for a client, Ms L Clarke,
whose application
was filed on the basis of her life-partnership with a South African
citizen on 19 August 2010. Ms Clarke needed
to leave the country
urgently. Ms de Saude requested whether it was possible for Ms
Reyneke to adjudicate Ms Clarke's application
prior to her departure
on 15 December 2010 as the last temporary residence permit endorsed
in Ms Clarke's passport expired on
3 November 2010. When she did not
receive a response from Ms Reyneke, she sent her an sms from her
mobile phone. Ms de Saude
received an sms response from Ms Reyneke
advising that she was preoccupied. She was told to contact the 4th
respondent
in relation to her request about Ms Clarke.
[22] On the
same date Ms de Saude called the 4th
respondent's
landline number to discuss Ms Clarke's situation, as well as
'bridging
permits' which
had apparently been promised by Ms Reyneke for first-time
applications, to no avail. Ms de Saude then called the 4th
respondent
on his mobile phone. He did not answer his mobile phone and she left
a detailed message requesting that he revert to
her as soon as
reasonably possible. Ms de Saude did not receive a response.
[23] Later
that afternoon Ms de Saude called another mobile number on the
website of the DHA (+27795193105) and spoke to a Mrs
Herbert. She
explained to Mrs Herbert the situation regarding the outstanding
applications (particularly the applications of
clients who were to
receive 'bridging
permits) and
the non-responsiveness of all the officials she had been
communicating with, including the 3rd
and 4th
respondents.
Mrs Herbert suggested that Ms de Saude speak with 'Solly',
whom
she introduced as her supervisor. After explaining the situation to
Solly he advised that he would get the 4th
respondent
to revert to Ms de Saude. No response was received. Ms de Saude also
tried calling the 3rd
respondent
on his landline and mobile phone numbers but they were unanswered.
[24] Over
the period 13 to 15 December 2010 Ms de Saude, together with the
other staff employed by the 1st
applicant,
spent many hours searching through their files, making copies of the
documents for the first-time applications and
scanning these
documents so that they could be transmitted electronically. She
emailed the documents for 134 of the 1st
applicant's
clients to the 4th
respondent
and copied the 3rd
respondent,
Ms Reyneke and the 4th
respondent.
The purpose of emailing these documents was to assist in the
provision of the 'bridging
permits' which the
1st
applicant
had been advised by the 4th
respondent
would be issued to these clients.
[25] On 13 December 2010 Ms de
Saude called Ms Reyneke on her landline and mobile numbers in order
to obtain an update in respect
of the pending applications but there
was no answer.
[26] On the
same day Ms de Saude contacted the 3rd
respondent
on his landline and mobile numbers regarding this issue, to no
avail. Later that morning, after hiding her caller identity,
she
again called the 3rd
respondent
on his mobile number and he answered. After introducing herself and
explaining the purpose of her call, the 3rd
respondent
rushed her off the phone, telling her that he was busy driving,
would not be available for the rest of the day and
that she should
call him the following day. Ms de Saude informed the 3rd
respondent
that she had been trying unsuccessfully to reach him on numerous
occasions over the past days. The 3rd
respondent
promised her that he would answer her call the following day and
also promised that he would assist her.
[27] On the
following day Ms de Saude called the 3rd
respondent
on his landline and mobile numbers on a number of occasions
throughout the day but there was never any reply.
[28] On the
same day (14 December 2010) Ms de Saude called the 4th
respondent
on his landline number and spoke with 'Amanda'
who
advised that the 4th
respondent
was not in the country. Amanda advised that she had not received Ms
de Saude's emails regarding the documents for the
'bridging
permits' and
that she would request the 4th
respondent
to respond. Ms de Saude then received an email from the 4th
respondent's
email address advising that Ms Fisher, the 4th
respondent's
personal assistant, would respond to her in due course.
[29] On 15
December 2010 Ms de Saude again called the 3rd
respondent
on his landline and mobile numbers, to no avail. She also received 8
emails from the 4th
respondent's
email address confirming receipt of 14 first-time applications which
she had transmitted to him for 'bridging
permits'.
[30] On 17
December 2010 Ms de Saude called the 3rd
respondent
on his landline and mobile numbers with no success. She was
thereafter on Christmas vacation and returned on 3 January
2011.
[31] On 6
January 2011 Ms de Saude called the 3rd
and 4th
respondents
on their landline and mobile numbers, to no avail.
[32] On the
same day she called Ms Reyneke on her landline number and 'Jackie'
answered.
Jackie advised Ms de Saude that Ms Reyneke was on leave until the
end of January and that she should contact 'Mavis'
(on
+27218108151) who was part of the team attending to the adjudication
of overdue applications. Ms de Saude called that number
and spoke to
'Ruth'
who
told her that Mavis was not taking any calls and that she (Ruth)
would assist her. Ms de Saude checked on 3 applications which
had
been filed with the DHA in December 2009 and Ruth confirmed that
these applications were still pending. The 1st
applicant's
list of the outstanding applications was extensive and Ruth asked
that Ms de Saude email her a copy of that list,
which she did. This
was for the purpose of Ruth retrieving these particular files from
the DHA storeroom for adjudication purposes.
Ms de Saude later
received an email from Ruth confirming that she would do her best to
assist where possible.
[33] Again
on the same day Ms de Saude resent certain of Eisenberg's emails to
the 3rd
respondent
and copied the 4th
respondent,
Ms Fisher and Ms Reyneke. She called the landline telephone number
of the 4th
respondent
and spoke with 'Mari-Anne'.
Mari-Anne
advised Ms de Saude that she was responsible for retrieving the 4th
respondent's
emails in his absence and she had not yet received Ms de Saude's
email. Mari-Anne further advised that the 4th
respondent
had not been in office for the past 3 weeks as he had been on leave
for 2 weeks and then in hospital for a week. She
did not know when
he was scheduled to return to office. When Ms de Saude told
Mari-Anne that she was trying to reach the 3rd
respondent
urgently, Mari-Anne responded that she did not understand why he was
not answering his landline and/or mobile phone
as he was in the
office and was available. Mari-Anne instructed Ms de Saude to call
the 3rd
respondent's
secretary, Kato'
(+27218107322).
[34] Ms de Saude then called
Kato on that number. After a short while someone answered the
telephone but then hung up before she
was able to speak. Ms de Saude
tried the number again and this time there was no answer.
[35] On 7
January 2011 Ms de Saude called Mari-Anne again on the 4th
respondent's
number to establish whether or not she had received her email of the
previous day. Mari-Anne advised Ms de Saude
that she was in a
meeting and would check the 4th
respondent's
email if and when she had time. She also confirmed that the 4th
respondent
was not in the office but if Ms de Saude wished to speak to him she
should call him on his mobile number. Ms de Saude
confirmed the
number with her to ensure that she had the correct number, which she
did. Ms de Saude then called the 4th
respondent
on his mobile number but his phone was turned off and the call went
directly to his voice mail. His voice mail instructed
that a voice
message should not be left and that an sms should be sent to which
he would respond. Ms de Saude then sent the sms,
briefly explaining
that the 1st
applicant
was not receiving any response to its correspondence whatsoever, and
requesting that he kindly respond. No response
was received.
[36] On the
same day at 14h10 Ms de Saude received an email from the 4th
respondent's
email address, which email was forwarded to the 3rd
respondent
and copied to Ms Reyneke. The email advised him (the 3rd
respondent)
to respond to Eisenberg's previous emails which had been resent to
the 3rd
respondent
on 6th
January
2011. Again no response was received.
[37] As at 3
February 2011 (the date upon which Ms de Saude deposed to her
affidavit) no feedback had been received from either
the 3rd
or the 4th
respondents.
Furthermore the 1st
applicant
had yet to receive a single 'bridging
permit' for
any of its clients.
[38] The respondents' answer to
Ms de Saude's allegations is simply a bare denial. They provide no
detail whatsoever as to why
her allegations are incorrect.
[39] On 20
January 2011 the applicants wrote to the respondents warning of
court action if they did not take meaningful steps
to address the
undetermined applications. Again no response was received and the
present application was launched on 4 February
2011 for hearing on
10 March 2011. At that stage 425 applications (excluding those of
the 2nd
to 4th
applicants)
spanning the period December 2009 to January 2011 had not been
determined by the respondents.
[40] On 21
February 2011 the state attorney wrote to the applicants on behalf
of the respondents. The gist of this letter was
that of the 425
applications, 113 had now been determined, 154 were missing
completely and 158 although 'reflected
as captured' could
also not be located.
[41] The
applicants responded by pointing out certain errors in the
respondents' records. These included that 2 names on the
respondents' list did not form part of the undetermined
applications, some of the applications listed as 'lost'
had
actually now been finalised, and the number of applications with
queries listed by the respondents did not match the number
of
previous queries. The applicants proposed that the respondents
attend at the 1st
applicant's
offices to copy all missing documents at their (the respondents')
expense. The litigation would be suspended while
attempts were made
to resolve the matter. Thereafter various officials came to the
offices of the first applicant on 3 and 4
March 2011 to copy the
missing applications.
[42] The respondents then
undertook to determine all outstanding applications by
10
March 2011.
However this did not happen because instead of comparing
'apples
with apples' the respondents produced a further 3 separate lists. In short these all
contradicted each other in numerous material respects and in any event contained
many inaccuracies. The respondents have subsequently abandoned any reliance on
these lists.
with apples' the respondents produced a further 3 separate lists. In short these all
contradicted each other in numerous material respects and in any event contained
many inaccuracies. The respondents have subsequently abandoned any reliance on
these lists.
[43] It is at this point that
things become a little murky. On 12 April 2011 Eisenberg sent an
updated list to the state attorney.
Although the respondents make
much of Eisenberg's failure to refer to this list in his
supplementary affidavit deposed to on
11
May 2011 and
seek to draw an adverse inference therefrom, Eisenberg is
candid
that he had simply overlooked this email. This is not surprising when regard is had to
the voluminous amount of correspondence and lists which had been emailed over and
over again to the various respondents. In any event that is not really the issue. What is
in issue is that somehow handwritten annotations found their way onto that 12 April
that he had simply overlooked this email. This is not surprising when regard is had to
the voluminous amount of correspondence and lists which had been emailed over and
over again to the various respondents. In any event that is not really the issue. What is
in issue is that somehow handwritten annotations found their way onto that 12 April
2011 list. These annotations
reflect which applications were still pending, which had been
rejected, and which had been approved.
And an unknown official or
officials in the employ of the respondents then dealt with that list
on the basis of those handwritten
annotations, concluding that there
were now only 13 applications which still needed to be determined.
According to the respondents
of those 13 only 6 presently remain
undetermined.
[44]
Eisenberg is adamant that the handwriting on the list is neither his
nor that of any of his staff members. The respondents
are equally
adamant that the handwriting is not theirs or that of anyone in
their employ. Eisenberg's covering email to that
list merely reads
that: 'Dear
Mr Mhlana Thanks for your call today.
Please find attached hereto
a list of what remains outstanding for Eisenberg & Associates
from the original list of this law
firm in our founding papers.
Let's find a way of
resolving this case once and for all. With my kind regards'
[45] The applicants point out
that of the 13 applications which the respondents concluded still
need to be determined, they are
simply wrong in respect of the
following clients:
1. Gin Hua
Yan: the respondents claim in their affidavit that this application
was not received by them nor was a copy provided
by the 1st
applicant.
However, according to the very list upon which they now rely, their
own records reflect that this client's application
was received by
them on 5 February 2010 and that it was still pending;
2. Awny
Monir Sadek Samy: the respondents aver that this application was
finalised and sent to their Cape Town regional office
but that by 22
July 2011 it had not been collected by the 1st
applicant.
The 1st
applicant
points out that as can clearly be seen from the endorsement stamp it
collected this permit on 10 June 2011;
3. Olga
Shevchenko: again the respondents allege that this application was
not received from either the Cape Town regional office
or from the
1st
applicant.
However the list upon which they rely reflects that the application
was received by them on 25 May 2010 and was still
pending;
4. Margarita
Murma: the respondents allege that this client's application was not
received from the 1st
applicant.
However, again, according to the list upon which the respondents
rely the application was received by them on 28 July
2010 and was
still pending;
5. Anastasia
Akatyeva: the respondents allege that this client's application,
although approved, had not yet been collected by
the 1st
applicant on
16 September 2011. However according to the list upon which the
respondents rely, it was collected by 1st
applicant on
2 June 2011;
6. Yan Qing
Chen: the respondents claim that they have no record of this
client's application and that it has thus not been received
from the
1st
applicant.
However according to the list upon which they rely it was received
by them on 1 September 2010 and was still pending
(it was in fact
finalised on 29 June 2011);
7. Chaya
Mushka Cohen: the respondents allege that this client's application
was not on the 1st
applicant's
list and that the 1st
applicant
has not even provided a copy thereof. However, according to the list
upon which the respondents rely they responded
to this application
on 26 November 2010 and it was still pending;
and
8. Halyna
Yila: the respondents claim that this client's application was
rejected because the client did not have a valid passport
and that
it is 'now
on appeal'. However,
according to the list upon which the respondents rely, it has always
been an appeal and the appeal was lodged in June
2010. The 1st
applicant
points out that in any event there was no requirement for this
client to have a valid passport because she is an asylum
seeker.
[46] The applicants accordingly
point out that of the 13 applications determined as 'pending' by the
respondents, 8 (i.e. over
half) contain errors. In addition the list
refers to one 'Lars Peter Leyendecker'. However in the respondents'
affidavit they
make no mention of this person but instead refer to a
Lena Myemnkiere Papy who is not even included on the list.
[47] In
addition in their affidavit the respondents first claim that with
regard to the 1st
applicant's
clients 'The
remaining applications, save for one, are not outstanding, as
appears from the following...' but
in the very next paragraph they claim that 'There
are thus no outstanding applications for Eisenberg &
Associates'.
[48] Similar
problems occur with the 5th
applicant's
clients.
[49] The applicants claim that
compounding the confusion at the DHA is the fact that the applicants
have been receiving yet more,
different lists from the Cape Town
branch of the Department. These lists are typically supplied by a Ms
Abrahams. Two of these
lists are referred to in the papers, one
dated 1 August 2011 and the other 19 October
2011. Neither of these lists
even approximate the list relied upon by the respondents. Notably,
the list of 19 October 2011 -
less than a month prior to the hearing
of this matter - lists 73 applications which are either pending or
of which there is no
trace.
[50] In
their affidavit the respondents' Mr Mamabolo (who is the 3rd
respondent)
deals with the review regarding compliance with departmental
directives and procedures conducted in the DHA's Cape
Town and other
regional offices in the Western Cape, outlines the steps taken by
the DHA in setting up a hub in Pretoria for
the central adjudication
of applications for permits, and sets out what has apparently been
achieved as a result of these steps.
[51]
According to the 3rd
respondent
in May 2010 a Mr Mellet {'Mellet),
was
appointed as the Director of Immigration Services for the Western
Cape. He was instructed by the Minister to oversee a review
of
compliance with standard operating procedures of the DHA by its Cape
Town regional office and other regional offices in the
Western Cape.
[52] The review commenced on 3
May 2010. It is an ongoing process to ensure that officials comply
with departmental procedures
and directives. The investigation
revealed that there has been large scale non-compliance with
standard operating procedures.
[53] The non-compliance with
departmental procedures and directives includes the following:
1. It appears that there has
been collusion between immigration practitioners and officials of
the DHA in relation to the adjudication
of applications; irregular
engagement between practitioners and officials regarding pending
applications;
and the submission of
applications without the requisite supporting documentation.
2. Certain
applications to the DHA were being considered and decided 'by
negotiation'. In
other words, immigration practitioners and members of the public
were influencing the outcome of applications after these had
been
submitted to the DHA.
3. The knock-on effect of these
practices had adversely impacted on the management of the Cape Town
office to such an extent that
some immigration practitioners were
wielding undue influence over departmental officials and procedures.
They were gaining an
unfair advantage over the general public. This,
in turn, also adversely affected service delivery.
4. Immigration officials
complained of abuse and intimidation by syndicates, individuals and
in particular, immigration practitioners.
5.
Departmental policies and directives were ignored. For example, in
2010 a corporate permit and more than 70 corporate worker
authorisation certificates for so-called 'exotic
dancers' had
been illegally issued to a Cape Town club, in flagrant disregard of
Departmental Directive No 22 of 2007 ('the
2007 directive) that
exotic dancing is not regarded as a scarce skill.
6. The 2007 directive was
similarly ignored when the DHA's Durban regional office issued
corporate permits for exotic dancers
to 5 nightclubs in Durban. In
addition, a member of one of the nightclubs had in his possession 2
new face value corporate certificate
books which could be used to
issue certificates to corporate workers, and which nobody is allowed
to possess. The official involved
in the issue of the corporate
permit to the Cape Town club, who was the former Assistant Director
and Head of the Permit Office
in Cape Town, was immediately
suspended and disciplinary proceedings were brought against him.
After a disciplinary enquiry before
an independent chairperson he
was dismissed in September 2010. He noted an appeal against his
dismissal. In November 2010 his
appeal was dismissed. Another senior
official who was also involved in the issuance of a corporate permit
to the same Cape Town
club, who was the Director: Immigration
Services, resigned in March 2011 before disciplinary proceedings
against him could be
continued. Steps are being taken to bring
disciplinary proceedings against the officials involved in the
issuance of corporate
permits in KwaZulu-Natal.
7. Moreover,
in terms of the Departmental Directive of Corporate Permits issued
on 29 October 2008, a corporate permit may not
be issued without a
recommendation by the Department of Trade and Industry ('DTI')
as
contemplated by s 21(2) of the Act. In certain of the nightclub
applications there was no recommendation by the DTI.
[54] As a
result of the many irregularities that emerged in the aforesaid
review the Anti-Corruption Unit of the DHA commenced
a forensic
investigation in co-operation with the Directorate for Priority
Crimes Investigation ('the
Hawks). This
investigation had not yet been completed when Mr Mamabolo deposed to
his affidavit on 7 October 2011. The investigation includes
an
analysis of fraudulent documentation submitted to the DHA;
fraudulent permits issued; and irregularities in relation to
corporate permits and worker authorisation certificates.
[55] According to Mr Mamabolo a
number of actions were taken to address the specific problems found:
1. Officials in the DHA were
informed about violations of standard operating procedures and that
disciplinary action would be
taken against those who had breached
procedures and directives.
2. Immigration practitioners
were advised to respect and follow procedures and that irregular
practices would not be tolerated.
3.
Officials were instructed not to accept poor or incomplete
applications.
4.
Measures were put in place to improve administrative procedures.
5. The adjudication of
applications was moved to a centralised adjudication hub in Pretoria
to avoid the violation of departmental
procedures and directives.
[56] As to the review in the
Western Cape, Mr Mamabolo referred to the affidavit of Mellet which
he claimed was filed together
with his affidavit. However no such
affidavit has been filed. The applicants confirm that they have
never seen such an affidavit.
[57] Mr
Mamabolo states further that with effect from May 2010 the
determination of all applications for permits was centralised
at the
DHA's central adjudication hub in Pretoria. In practice,
applications are submitted to the DHA's regional offices in the
various provinces. The applications are then sent on to the central
adjudication hub. This means that all applications submitted
across
the country are adjudicated at the hub. In Mr Mamabolo's words
'Needless
to say, this was a daunting project which brought with it its own
challenges and difficulties as regards human resources;
equipment;
and logistics'. Mr
Mamabolo lists the difficulties encountered as follows.
[58] The task of setting up and
running a hub was rendered more difficult by the fact that the DHA,
and more specifically its
Chief Directorate: Permitting, renders
extensive services in relation to permits. These include the
issuance of permanent residence
permits, temporary residence
permits, waivers in relation to permanent and temporary residence
applications, and exemptions in
terms of the Act.
[59] In
addition, the DHA is also responsible for appeals to the
Director-General and the Minister under the Act, applications
for
proof of permanent residence, withdrawals of permits, extensions of
temporary residence permits and the Large Account Unit.
This unit is
responsible for the adjudication of corporate permits where large
companies are bringing scarce skills into the
country. The clients
are selected through a specified list of criteria published in the
Government Gazette. These applications
are dealt with by a selected
team and the turnaround time is 15 days. There are 4 categories of
direct permanent residence permits
under s 26 of the Act, namely
worker; spouse; dependent child; and child of a South African
citizen. There are 7 categories of
permanent residence permits 'on
other grounds' under
s 27 of the Act, namely worker; extraordinary skills; own business;
refugee; retired person; financially independent and
relative. There
are 12 categories of temporary residence permits, namely visitor;
study; treaty; own business; crew; medical
treatment; relative;
worker; retired; corporate; exchange; and asylum transit.
[60] In accordance with the
decision to centralise the adjudication of all applications for
permits in Pretoria, all regional
offices across the country were
instructed to forward pending and new applications to that hub,
together with face value documents.
[61] At that stage already,
i.e. May 2010, there was already a large backlog of applications in
regional offices. In order to
deal with this a number of officials
experienced in deciding applications for permits were seconded to
the hub in Pretoria. A
total of 11 adjudicators and additional
administrative staff were seconded to the DHA's Head Office at the
end of May 2010.
[62] By November 2010 there
were an estimated 13 000 applications for permanent residence
permits. Of these 6000 were within the
turnaround period of 6
months. There were about 7000 applications older than 6 months at
the DHA's Head Office and regional offices.
As regards temporary
residence permits there were about 11 900 applications at Head
Office older than the turnaround time of
30 days; and an estimated
total of 9 000 at regional offices. In addition there was an
estimated backlog of 30 000 applications
in respect of documentation
for Zimbabweans. (This is a total of 54 900 applications.)
[63] It became apparent that
even with the increased numbers of adjudicators and administrative
staff, the task of deciding applications
would require even more
adjudicators and staff; and additional logistical requirements such
as a dedicated receipting unit, an
in-house courier service and
effective communication between the hub and regional offices.
[64] Mr Mamabolo also states
that in order to deal with the situation and more specifically the
backlog in the adjudication of
permits in November 2010, the
Minister and the Director-General approved the Permit Stabilisation
Project in terms of which the
following recommendations would be
implemented:
1. One central postal receipt
unit to receive and dispatch all applications from and to regional
offices would be created.
2. Separate adjudication hubs
to deal with the backlog, normal applications for permits, and the
Zimbabwean Project would be created.
This would enable the DHA to
monitor their performance separately and to develop appropriate
interventions.
3. A daily shift system would
be implemented to improve hub operations. The first shift would be
from 06h00 to 14h00 and the second
from 14h00 to 22h00 on weekdays.
A Saturday shift would be from 08h00 until 13h00.
4. At least two Permit Quality
Inspectors would be appointed in regional offices. They would be
responsible for the receipt of
applications and their dispatch to
the courier service, XPS. They would also be responsible to ensure
that officials who work
in the front office are accountable for
applications.
5. The process of receiving
applications in the front office would be simplified and
standardised. This would improve the quality
of assessment of
applications and increase capacity to assess greater volumes. A
checklist for the receipt and assessment of
applications would be
implemented.
6.
The service level agreement with XPS would be reviewed and steps
would be taken to improve their daily operations. This in
turn would
improve daily reconciliation of applications collected from and
delivered to Head Office.
7.
Statistics and performance data management would be improved.
8.
Telephone conferences would be held on a daily basis between the
various offices in the DHA with effect from 1 December 2010.
9. The extensions of temporary
residence permits would be processed separately with an improved
turnaround time. It was recommended
that extensions be finalised
within 5 working days given their low risk profile. (It is noted
however that the 5 day turnaround
time does not accord with the
media statement of the Department of 25 November 2010 when the
public was informed that the turnaround
time would be 48 hours.)
[65] The Permanent
Stabilisation Project was implemented in the first week of December
2010.
[66] Mr
Mamabolo then refers to the 'major
highlights' achieved
during the period 6 December 2010 to 6 January 2011. These included
the appointment of an additional 35 adjudicators
and 160 contract
workers for sorting and filing, postal receipt and dispatch;
internal couriers; and the establishment of the
'48
hour extension hub'.
[67] According to Mr Mamabolo
the following challenges were encountered in the process of
implementing the Permit Stabilisation
Project. There was a need to
strengthen the functioning of the DHA in relation to waivers and
appeals. There was a need for more
office space due to the high
volume of applications that were being processed; the DHA ran short
of the necessary forms, obtainable
only from the government printer.
The DHA also experienced problems with the telephone conference
system and equipment maintenance.
By 7 January 2011 further steps
were identified which needed to be taken. These included an amnesty
to all permitting officers
to dispatch all mainstream permitting
applications to Head Office by 31 January 2011; that a permit review
workshop would be
conducted to focus on process reviews and
improvement and that other related aspects would be reviewed towards
mid-March 2011.
[68] As at
October 2011 Mr Mamabolo claimed that, whilst it must be
acknowledged that there were challenges in the permitting
system
'before
its centralisation, which created a backlog of approximately 54 000
applications' the
DHA has taken concrete steps to ensure that the permitting system
makes it easy for business and critically skilled people,
students
and tourists to be issued with relevant permits timeously. He claims
that the applicants' contention that the respondents
have not
complied with their duties under the Constitution and the Act is
unfounded. He says that 'They
pay no regard to the challenges which the Department faced in
implementing the new centralised system; what has been achieved
with
limited resources; and the need for central regulation and control
of the permitting system'.
[69] This is
all good and well. However for purposes of adjudicating the present
matter the following is apposite. Firstly, there
is no allegation by
the respondents that the immigration practitioners whom they accuse
of misconduct include either of the applicants.
Secondly, it is
difficult to understand when, in the knowledge that the DHA would be
faced with the problems outlined by Mr Mamabolo
in his affidavit,
they nonetheless issued the media statements of 18 and 25 November
2010. Any reasonable member of the public
reading those statements
would be justified in concluding that: (a) the DHA had been provided
with sufficient resources and expertise
'to
ensure foreigners can contribute meaningfully to the development of
our country without any obstacles through the timeous
issuance of
permits to all concerned'; and
(b) 'all
foreigners seeking extensions to their individual permits....[shall]
be
granted such extensions within 48 hours...By granting extensions
within 48 hours, the applicants will be able to travel, work,
study
and conduct business as stated in the initial terms and conditions
of the permit they seek to extend'. Thirdly,
the sorry tale of utter inefficiency over the period December 2010
to January 2011 relayed by Ms de Saude occurred within
the first 2
months after the release of media statements expressly to the
contrary. And of course the fact of the matter is that
the DHA
simply did not fulfil its public promises. It is not disputed by the
respondents that none of the applications in the
present matter were
ever attended to within the promised 48 hour turnaround time. In
fact on Mr Mamabolo's own version it was
never intended by the DHA
that there would be a turnaround time of 48 hours, but one of 5
working days. On the applicants' version,
as at 3 November 2011, of
the 425 undetermined applications, there were 115 permit extension
applications and/or review applications
and/or administrative
correction applications which had still not been finalised. In terms
of a supplementary note provided by
the applicants on 18 November
2011 there are still 105 such applications.
Evaluation
[70] Before
turning to consider whether the relief sought by the applicants is
competent it is necessary to apply the wel^known
Plascon-Evans
rule
(Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984
(3) SA 623 (A) at 634H-635A). Accordingly this matter must be
decided on the respondents' version unless I am satisfied as to the
inherent
credibility of the applicants' version, or that 'the
allegations or denials of the respondent are so far-fetched or
clearly untenable that the court is justified in rejecting
them
merely on the papers'.
[71] In this regard it simply
makes no sense that Eisenberg would have sent a list to the
respondents on 12 April 2011 which contained
handwritten annotations
that were, on his own version, factually incorrect. The applicants'
records are meticulous compared to
those of the respondents. The
more likely probability is that Eisenberg's list landed up in the
hands of one of the many officials
in the respondents' employ. That
official then attempted to deal with the outstanding applications
based on incorrect or inadequate
records and made the handwritten
annotations thereon. If this were not the case then Ms Abrahams of
the Cape Town regional office
would not have been able, based on the
same records - which must surely be kept on a central database - to
produce two further
and still inaccurate lists thereafter.
[72] Furthermore I have to
consider the facts which are either admitted or are not seriously
disputed by the respondents, and
which have been set out in some
detail hereinabove.
[73] Having
given careful consideration to the respective versions of the
applicants and the respondents as set out in the papers
and
summarised above, the only reasonable conclusion which I can reach
is that the applicants' version is inherently credible
and the
respondents' version is untenable to the extent that it must be
rejected. Despite the respondents' protestations to the
contrary the
inescapable inference is that, irrespective of whether they have the
best will in the world, they have dealt with
the applications of the
applicants' various clients in a manner which can only be described
as 'administrative
bungling'. I
thus find that whether the relief sought by the applicants is
competent must be determined on their version.
Whether the relief sought
is competent
[74] As I have mentioned above
the respondents are the officials in the DHA who, generally
speaking, administer the immigration
regime in South Africa in terms
of the Act and regulations pursuant thereto. One of the most
important components of this regime
is the lawful and efficient
provision of temporary residence permits to foreigners who wish, for
whatever reason, to enter and
sojourn in South Africa.
[75] For a
foreigner in South Africa these permits are the single most
important document that they can possess. It is the basis
of their
legal existence in this country. Every aspect of their lives - the
ability to travel freely (s 21 of the Constitution);
the ability to
work and put food on the table for their families (a component of
the right to dignity in s 10 of the Constitution,
see Minister
of Home Affairs and Others v Watchenuka and Another 2004
(4) SA 326 (SCA) at 339B-C and F-G, 340G); the ability to keep their
children in school (ss 28 and 29 of the Constitution); and the basic
right to liberty (s 21(1) of the Constitution) - is dependent on the
physical possession of a valid permit.
[76] The acquisition of a valid
permit is the primary pre-requisite for any foreigner in South
Africa and is thus a major stepping-stone
to bringing tourists,
skills, foreign investment and employment to this country. This much
is acknowledged by the respondents
in their media statement of 18
November 2010.
[77] Section 195 of the
Constitution places an obligation on public administration not only
to adhere to a high standard of professional
ethics; but also that
public administration must be accountable and transparent by
providing the public with timely, accessible
and accurate
information and responding to the needs of people.
[78] Section
33(1) of the Constitution provides that 'Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair'. The
respondents are bound by the Constitution to adhere to s 33(1)
thereof.
[79] The applicants submit that
the unreasonable delay of the undetermined applications constitutes
a violation of the law and
the Constitution. This violation gives
rise to two independent causes of action: one based on judicial
review and the other on
a mandatory interdict. The effect of the
relief sought in respect of these two independent causes of action
is the same.
Judicial review
[80] The applicants submit that
their clients' constitutional rights have been violated by the
unreasonable delay of the respondents.
Accordingly, the principles
applicable include that: (a) the Constitution is the supreme law of
South Africa; law or conduct
inconsistent with it is invalid to the
extent of the inconsistency (s 2 of the Constitution); (b) when
interpreting any legislation
and when developing the common law
every court must promote the spirit, purport and values contained in
the Bill of Rights (s
39(2) thereof); and (c) all constitutional
obligations must be performed diligently and without delay (s 237
thereof).
[81] Being
deprived of a permit due to the respondents' conduct infringes upon
the variety of constitutional rights referred to
above. The
infringement of each of these rights flows from the same source:
that without a permit a foreigner in South Africa
becomes a 'legal
ghost'. He
or she is denied recognition of his or valid existence in South
Africa, is constantly at risk of arrest, detention and deportation;
may not move freely around South Africa or in and out of South
Africa; and cannot be employed and so cannot earn a living with
the
attendant disadvantages of lack of access to health care, education
and the like.
[82] In
considering the applicants' contentions it is appropriate to have
regard to the sentiments expressed by the Constitutional
Court in S
v
Jaipal [2005] ZACC 1; 2005
(1) SACR 215 (CC) at 236e-237c. Although that case considered the
constitutional rights of an accused person there is no reason why
the principles
set out therein should not apply equally here. The
court said
'For the State to respect,
protect, promote and fulfil the rights in the Bill of Rights,
resources are required. The same applies
to the State's obligation
to assist and protect the courts, to ensure their independence,
impartiality, dignity, accessibility
and effectiveness. The right to
a fair trial requires considerable resources in order to provide for
buildings with court rooms,
offices and libraries, recording
facilities and security measures and for adequately trained and
salaried judicial officers,
prosecutors, interpreters and
administrative staff.
Few countries in the world
have unlimited or even sufficient resources to meet all their
sociopolitical and economic needs.
In view of South Africa's
history and present attempts at transformation and the eradication
of poverty, inequality and other
social evils, resources would
obviously not always be adequate. However, as far as upholding
fundamental rights and the other
imperatives of the Constitution is
concerned, we must guard against popularising a lame acceptance that
things do not work as
they ought to, and that one should simply get
used to it. Naturally the relevant authorities must attempt to see
to it that facilities
are provided as far as possible. Furthermore,
all those concerned with and involved in the administration of
justice -including
administrative officials, Judges, magistrates,
assessors and prosecutors must purposefully take all reasonable
steps to ensure
maximum compliance with constitutional obligations,
even under difficult circumstances. Responsible, careful and
creative measures,
borne out of a consciousness of the values and
requirements of our Constitution, could go a long way to avoid
undesirable situations...
To compromise the right to a fair trial
may in principle be as dangerous as to cancel or postpone democratic
elections because
of a lack of facilities or resources.'
[83] The
framework legislation for judicial review is the Promotion of
Administrative Justice Act No 3 of 2000 ('PAJA).
[84] Section 6 of PAJA sets out
the relevant ground of review as follows:
'(2) A court or tribunal has
the power to judicially review an administrative action if-
…..........
(g) The action concerned
consists of a failure to take a decision;
…...........
(3) If any person relies
upon the ground of review referred to in section 2(g), he or she may
in respect of a failure to take
a decision, where -
(a) (i) an adjudicator has a
duty to take a decision;
(ii) there is no law that
prescribes a period within which the administrator is required to
take that decision; and
(iii) the administrator has
failed to take that decision; institute proceedings in a court or
tribunal for judicial review of
the failure to take the decision on
the ground that there has been unreasonable delay in taking the
decision.'
[85] The applicants have set
out why 30 days is a reasonable deadline within which a temporary
residence permit application should
be finalised. The respondents
concede that this is so. The respondents are clearly under a duty to
take decisions on the undetermined
applications. It is common sense
that in the absence of such a duty, the Act would cease to have
meaning. The respondents could,
simply by refusing to take
decisions, reduce the Act to an arbitrary and ineffective piece of
legislation. This goes directly
against the purpose of the Act
itself as well as the principle of the rule of law enshrined in the
Constitution. The respondents
have simply failed to take the
decisions required of them in a lawful, reasonable and procedurally
fair manner.
[86] The
respondents argue that this relief sought by the applicants must
fail on two grounds. The first has already been dealt
with, namely
that on the facts the respondents' version must be favoured over the
applicants' version. The second, which is inextricably
linked to the
first, is that since on the respondents' version only 6 applications
have not been determined, this court should
exercise its discretion
to withhold granting the relief sought in accordance with the trite
principle that in proceedings for
judicial review, a court has a
discretion whether to grant or withhold the remedy (Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2004
(6) SA 222 (SCA) 246C-D). However since I have found that the
applicants' version is inherently credible and that the respondents'
version
is clearly untenable, it follows that I find that there are
still 105 applications which have not yet been determined by the
respondents. That is a significant amount. This also means that the
lives of 105 foreigners (excluding their dependents who are
also
obviously affected) hang in the balance until the respondents get
their house in order.
[87] In these circumstances the
applicants are entitled to the relief sought by them under s 6 of
PAJA.
[88] The last of the first-time
applications in the present matter was submitted in January 2011
(i.e. 10 months ago). Some applications
have remained undetermined
since February 2010 (i.e. 19 months ago). The respondents themselves
concede that the turnaround time
envisaged in the Act is 30 days
(although they themselves seem to believe that a turnaround time of
somewhere between 48 hours
and 5 working days would be reasonable,
at least in respect of applications for extensions of temporary
residence permits). I
am satisfied that it would be just and
equitable to order the respondents, in terms of s 8(1 )(a)(ii) of
PAJA, to determine within
30 working days from date of this order,
the undetermined temporary residence permit applications and/or
extension applications
and/or review applications and/or
administrative correction applications. It is also just and
equitable to order that in the
event that any of the aforesaid
undetermined applications have been misplaced by the respondents,
they shall take steps, at their
own expense, to copy the misplaced
applications from the offices of the applicants in order to give
effect to the aforegoing.
[89] The consideration of the
alternative relief sought by the applicants by way of a mandatory
interdict thus falls away.
The relief sought by the
applicants that the respondents must determine any subsequent review
and/or administrative correction
applications which might arise from
determination of the undetermined applications
[90] The
applicants argue that it would be appropriate to grant this
'consequential'
relief
since it will nonetheless pertain to their presently affected
clients.
[91] The respondents argue that
this relief is not competent for the following reasons. Firstly, it
is a trite principle that
courts of law exist for the settlement of
concrete controversies and actual infringement of rights, and not
abstract questions.
Secondly, this court cannot make an order which
is not capable of being enforced.
[92] As to
the determination of 'abstract
questions' the
Appellate Division in Geldenhuys
and Neethling v Beauthin 1918
AD 426 at 441 said that:
'No doubt there is something
to be said in favour of sanctioning the issue of declaratory orders
even where there has been no
infringement of rights. But on the
other hand it would be very difficult to define the limits within
which that jurisdiction
should be confined. And its unregulated
exercise would lead to great uncertainty of practice. After all,
Courts of Law exist
for the settlement of concrete controversies and
actual infringements of rights, not to pronounce upon abstract
questions, or
to advise about differing contentions, however
important. And I think we shall do well to adhere to the principle
laid down by
a long line of South African decisions, namely that a
declaratory order cannot be claimed merely because the rights of the
claimant
have been disputed, but that such a claim must be founded
upon an actual infringement.'
[93] Most
recently, the Constitutional Court has held that whether or not
administrative action has been taken which would make
PAJA
applicable (as in the case of prospective internal reviews under the
Act) cannot be determined in the abstract. Regard must
always be had
to the facts of each case. This was set out in Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd and Another 2011
(1) SA 327 (CC) at 341B:
PAJA defines administrative
action as a decision or failure to take a decision that adversely
affects the rights of any person,
which has a direct, external legal
effect. This includes action that has the capacity to affect legal
rights. Whether or not
administrative action, which would make PAJA
applicable, has been taken cannot be determined in the abstract.
Regard must always
be had to the facts of each case.'
[See also
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 (CC) at 67G-68B.]
[94] It
seems to me that to grant the consequential relief sought by the
applicants would be tantamount to the determination of issues
which
may or may not arise. I would thus be granting relief in the
abstract. The applicants really seek to protect themselves
(or
rather their affected clients) from the possibility
that the
respondents' pattern of tardiness will continue. But this does not
amount to a concrete controversy or actual infringement
of rights as
set out in the Geldenhuys
case
referred to above.
[95] And in any event it should
be borne in mind that the applicants themselves might, due to
administrative or other error, submit
incomplete or erroneous
applications. By making the order in the terms sought by the
applicants, I could potentially be opening
the door to a flood of
contempt applications against the respondents.
[96] Linked
to this is the principle that courts can only grant orders which can
be enforced. As said by the Appellant Division
in Administrator,
Cape and Another v Ntshwaqela and Others 1990
(1) SA 705 (A) 720D and G:
'It is trite that a court
will not engage in the futile exercise of making an order which
cannot be carried out.. .the same principle
must apply when the
question is one not of obeying the law but of complying with an
order of court.'
[97] In the circumstances this
part of the relief sought by the applicants must fail.
Costs
[98] During the course of
argument the respondents successfully applied to strike out
substantial portions of the applicants'
replying papers. The entire
affidavit of Mr Isaacson (including all annexures thereto) was
struck out and I agree with the submission
of the respondents'
counsel that approximately 75% of the replying affidavit of
Eisenberg (including annexures) was similarly
struck out.
[99] As to the remaining costs
and without adopting an overly technical approach, I believe that it
would be just and equitable
to order the respondents to effect
payment of 80% of the applicants' costs. This is because about 80%
of the argument and the
papers not struck out with costs related to
the relief in which the applicants have been successful.
Conclusion
[100] In
the result I make the following order:
'1. The respondents'
failure to decide, within a reasonable time, upon the temporary
permit applications and/or review applications
and/or administrative
correction applications of the persons named in the list annexed
marked "X" [subcategories 'A'
to 'F'] is hereby reviewed
and set aside.
2. The respondents shall
within 30 (thirty) working days from date of this order determine
the temporary residence permit applications
and/or review
applications and/or administrative correction applications of the
persons named in the list annexed marked "X"
[subcategories 'A' to 'F']. For this purpose 'determine' shall mean
decide, deliver and immediately make available to the applicants
the
'determination' in each instance upon its arrival at the Cape Town
office of the first respondent.
3. In the event that any
of the undetermined applications have been misplaced the respondents
are directed to take steps, at their
own expense to copy same from
the offices of the applicants in order to give effect to the terms
of this order.
4. The balance of the
relief sought by the applicants is dismissed.
5. The respondents shall
effect payment of 80% of the applicants' party and party costs, save
for the costs relating to the affidavit
of Mr Isaacson (which has
been struck out) and 75% of the replying affidavit (including
annexures) of Mr Eisenberg (which has
similarly been struck out).
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