Costs of Legal Claims against Home Affairs

Home Affairs: What are the costs of defending a dysfunctional department?

Annette Lovemore, Shadow Minister of Home Affairs
12 October 2010

The pending legal claims of R6.862 billion against the Department of Home Affairs have been well publicised since the release of the department’s 2009/10 annual report during last week. However, what the annual report does not tell the South African public is how much has been spent by the Department on defending legal challenges and on paying the costs of those challenges during the past financial year. This is most concerning, as in many instances, the legal challenges are ones in which the Department has failed to deliver basic services, or acted in a potentially unlawful manner. R6.7 million was budgeted for legal consultants, but the actual costs incurred for such consultants was R23.7 million (up 124% from R10.6 million in 2008/09). And yet, no indication is given of actual costs incurred in settling these claims against the department.

A quick review of cases heard in our courts during the 2009/10 financial year reveals a disturbing trend with respect to this Department. The following selection of cases, and comments by attorneys and judges involved, provides a glimpse into the level of dysfunctionality that leads to the department losing one legal battle after another:

•    May 2009, Lawyers for Human Rights press release
“On 10 May 2009, the day the Department of Home Affairs welcomed its new Minister, Home Affairs illegally deported an asylum seeker to the Democratic Republic of Congo...The deportation is a blatant violation of South Africa's domestic and international legal obligations, which prohibit returning an asylum seeker to an area where he risks persecution. Further, the deportation occurred just two days before his case against Home Affairs was to be heard in the Johannesburg High Court.

This is the fourteenth court case brought by LHR in the past three months challenging the unlawful arrest and detention of asylum seekers.  In eleven of these cases, the court ordered the release of the applicant from Lindela Holding Facility.  In the remaining two cases, Home Affairs agreed to release the detained person on the morning of the court hearing, after the detainee had been subjected to months of unlawful detention.”

•    January 2010, South Gauteng High Court, Johannesburg, Aruforse v Minister of Home Affairs and Others
Judge Meyer commented: “A detained person has an absolute right not to be deprived of his freedom for one second longer than necessary by an official who cannot justify his detention... ordered to cause the immediate release of the applicant from the Lindela Holding Facility in Krugersdorp...The first and second respondents are ordered to pay the applicant’s costs of this application.”

•    May 2010, News 24: South Africa’s Lawyers for Human Rights at the weekend secured the release of a Zimbabwean human rights defender, Petro Chatiza at the South Gauteng High Court... Gina Snyman of Lawyers for Human Rights represented Chatiza... “Home Affairs have caused this man an abhorrent injustice. Our courts have consistently held that a person should not be detained for one second longer than authorities can justify the detention, but Home Affairs acts with no urgency or recognition of the rights of the people it detains,” said Snyman in a statement. “It’s also appalling that our client had to borrow a smuggled telephone from a fellow detainee to get word out of his detention, and that we only knew of it via Amnesty International in London.”

•    July 2010, Eastern Cape High Court, Grahamstown, Ncube v Minister of Home Affairs and Others
Review of refusal to grant a work permit
Judge Revelas commented : “The history of the matter...serves to illustrate the continued unfair treatment of the first appellant and the irrational and malevolent manner in which his attempts to legalise his status were dealt with by Home Affairs...”

The Department is currently facing a court challenge by four couples, in an attempt to force the issue of the relevant spousal permits, while two asylum seekers have initiated a court case in Cape Town to force the Department to consider asylum applications at any centre in South Africa. The Forum of Immigration Practitioners of South Africa (FIPSA) is dealing with many permit applications which are taking the department between four and six months to process, despite the statutory requirement that such applications are to be dealt with within 30 days. FIPSA is considering legal action to force the Department to comply with its own laws.

All of these cases, as well as the many others, along with the attached costs, are as a result of the Department simply not doing its job.

It is concerning when people have to take the Department to court in order for it to perform its mandated duties. Furthermore, this comes at great expense not only to the South African public – money which is now subsidizing the legal battles of a dysfuncional Department - but also at great cost to the person who is being denied services from the Department.

The Democratic Alliance (DA) will submit questions to the Minister in this regard, and will make the reply public. More importantly, the DA will continue to use all available tools to compel the Department to deliver on its own value statement and become efficient and professional, thus obviating the need to defend patently justified court challenges.

http://www.da.org.za/newsroom.htm?action=view-news-item&id=8786

The Minister should come clean on R4.1 billion contract

Annette Lovemore, Shadow Minister of Home Affairs
9 December 2010

The Democratic Alliance has submitted applications, in terms of the Promotion of Access to Information Act 2 of 2000, for copies of two reports on investigations into the Department of Home Affairs’ controversial “Who Am I Online” project.

Both reports detail investigations commissioned in 2008 by former Minister of Home Affairs, Nosiviwe Mapisa-Nqakula, into the awarding of a multibillion rand tender for electronic systems to GijimaAst.

The first report, by the Office of the Auditor-General, was apparently delivered to the Ministry of Home Affairs in February 2009, but has never been made public. This is despite calls for disclosure of the contents of the report by the DA, the ID and by the parliamentary Portfolio Committee on Home Affairs.

The second report is by academic Harvey Wainer, and was, we are told, delivered to Minister Dlamini-Zuma in 2009. It, too, has never been made public.

In 2008, the Department of Home Affairs signed a contract with GijimaAst, valued at R1.9 billion, to implement the “Who Am I Online” system. GijimaAst is owned by billionaire Robert Gumede, a known friend and backer of President Zuma. The project was aimed at replacing the department's outdated systems with electronic processing, and formed part of modernising the Department by, inter alia, eliminating manual and paper-based systems used to issue visas, passports and identity documents.

Costs for the project spiralled exponentially during its short life, eventually reaching a total of R4.5 billion.

The Department has already paid GijimaAst R391 million. The company thus contends that it is still owed approximately R4.1 billion.

On 13 April 2010, Home Affairs sent a letter to GijimaAst cancelling the deal, telling parliament, at the time, that "the supplier for the 'Who am I Online' project had failed to perform and deliver in accordance with the contract". However, Home Affairs informed the company that the contract had never been valid and was unenforceable. This implies that the Department paid the company hundreds of millions of rand without a valid or legally binding contract being in place.
GijimaAst  is threatening legal action to recover these costs. Taking into account that the entire budget for the Department’s functioning for 2010/11 is R5.7 billion, a successful court challenge could well bring the Department to a standstill. (It is rather alarming to note that the pending legal claims against the Department total R6.8 billion – well in excess of the total annual budget.)

The South Africa state has already paid almost R400 million and will potentially fund an additional R4.1 billion for a project that:

(a) was awarded under circumstances that have been the subject of two forensic audits, the results of which have never been made known; and
(b)    has not delivered any measurable results.

The DA will continue to utilise all tools at its disposal, including the current applications for information, and, in the new year, requesting a presentation by the Minister on the subject, to uncover the true facts behind the awarding of this contract and its subsequent cancellation, not to mention who will be held responsible for the expenditure, over 18 months, on  a contract that was never considered valid.

http://www.da.org.za/newsroom.htm?action=view-news-item&id=8992

The dea(r)th of privacy rights — Home Affairs and the banks

by Chris Watters
Coming from the culture we do, where we lived with, and many by and large accepted the validity of, an all-seeing, all-knowing, ‘big brother' government, South Africans appear to have a schizophrenic attitude towards privacy rights. The high point of our demand for privacy probably occurs when we get those mid-dinner time phone calls from someone trying to sell us a free-ish holiday in Mauritius or those unsolicited text messages advertising some never to be repeated deal of a lifetime (at least not until the next day). It's probably only at that point that some will get steamed and wonder where these agencies got our details from. On the other hand, as part of our break from our twisted past, section 14 of the Bill of Rights has enshrined the right of "everyone" to privacy. And the Promotion of Access to Information Act [‘PAIA'] is tasked with finding a happy median between the demand for transparent governance and that right to privacy.

So it came with some surprise (or perhaps not) to see Home Affairs and the SA Banking Risk Information Centre applauding each other for the ‘strategic partnership' they had concluded recently. The stated aim of this partnership is to allow SA's banks to conduct online fingerprint verification of bank clients. This will be done by Home Affairs giving the banks "real time access" to Home Affairs' HANIS database of our fingerprints. Not the fingerprints of some criminal scum-bucket from some far flung failed state who is visiting South Africa, it is noted - because the fingerprints of casual visitors, irrespective of who they are or where they are from, do not get captured on the Home Affairs' database.

And the problem? Well, for starters, our fingerprints qualify as our "personal information" in terms of section 1 of PAIA. And section 34(1) of PAIA requires a public body to refuse any request for the disclosure of personal information "if its disclosure would involve the unreasonable disclosure of personal information." But if the public body's information officer is contemplating the request, he or she is required to notify the third party "to whom ... the record [sought] relates...". And time frames are set out to allow for this and for appeals to take place if the third party objects to the intended disclosure.

So Home Affairs cannot lawfully allow the banks - or anyone for that matter - ‘real time access' to our fingerprints. Its not the Department's information to disclose as and when it suits them or the banks!

But, and here is where our ‘big brother' past creeps in, one can almost immediately hear the cry from Home Affairs or the banks of ‘what is objectionable about this unless we are guilty of something'and ‘what do we have to hide?'

The answer was set out very succinctly in a recent judgment of the Pretoria High Court by Bertelsmann J in Makhanya v Vodacom Service Provider [2010 (3) SA 79 GNP] where, citing authority in the US Supreme Court, he described the right to privacy as "the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."

But, of course, we do not need to look to US authority to object to the banks fishing about our records at Home Affairs. The answer lies ultimately here at our back door - the Bill of Rights and PAIA say that such a disclosure would be unlawful. In PAIA, Parliament has set out a procedure to be followed if Home Affairs wants our permission to make these disclosures. The inquiry may have an entirely legitimate function and purpose and we may well have no objection. But PAIA requires that we should be asked first. And section 7 of the Bill of Rights demands that the state must "respect, protect, promote and fulfil the rights in the Bill of Rights" - not ignore them whenever it is deemed convenient or ‘reasonable' by some unknown bureaucrat. And apparently implied in this ‘strategic partnership' is that all such requests received from the banks, will be deemed reasonable - as least as far as their joint media release is concerned.

Ultimately, it boils down to whether or not, in implementing this strategic partnership, the banks and Home Affairs have any regard for our dignity, do they really respect their clients?


Chris Watters

  http://www.polity.org.za/print-version/the-dearth-of-privacy-rights-home-affairs-and-the-banks-2010-06-07

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