ConCourt to Aaron Motsoaledi on immigration case: Tell us why we should not hold you personally liable

Home affairs minister Aaron Motsoaledi and his director-general have been directed by the highest court to tell it why they shouldn't be held personally liable for the costs of the minister’s recent application to “revive” a court order they had failed to implement for three years. 

In 2017 the Constitutional Court had given Parliament two years, until 2019, to amend the Immigration Act. It did not and there is yet to be an amendment bill introduced in Parliament. Instead of coming back to court to ask for an extension, the minister had done nothing for three years.

When the matter was argued in court on May 25, chief justice Raymond Zondo said: “I have been around a long time. I have never seen anything like this,” 

In court Motsoaledi’s counsel, Mike Bofilatos SC, was questioned about whether the minister had only been moved to act when the department was unable to deport illegal foreigners because some magistrates were refusing to hold inquiries under the legislation that was meant to be amended, believing it had been struck down by the apex court. 

The minister blamed the delay on the Covid-19 pandemic and the fire in Parliament, both of which happened after the order had already lapsed.

The directions issued on Wednesday said Motsoaledi and director-general Livhuwani Makhode must “show cause” why they should not be “held personally liable for the costs of this application” because of the manner in which the case had been litigated. 

This included “the absence of an apology” for their failure to implement the court order, something Zondo twice raised with Bofilatos during the hearing. 

The two must account for the “ill-conceived ‘revival’ application” which, said the directions, was “motivated not by the fact that the deadline to pass constitutionally compliant legislation had expired, but by the fact that magistrates refuse to hear section 34 applications”.

They must also account for bringing the application without including Lawyers for Human Rights (LHR) as a party; and for doing so in the high court without even notifying LHR, the organisation that brought the case to court in the first place. 

Finally, Motsoaledi and Makhode must explain why they should not personally pay for “seeking refuge for the inordinate delay” in bringing the application “in the Covid-19 pandemic and the fire at Parliament, events that occurred long after the deadline of 24 months had passed, while failing to take steps to approach this court timeously for an extension”, said the directions.

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