There was a tense moment in the Constitutional Court last week. Mike Bofilatos SC, counsel for home affairs minister Aaron Motsoaledi, had just been roasted by the judges for a “pathetic dereliction of duty” in failing to implement a 2017 order to amend the Immigration Act. Instead of coming back to court before the order lapsed in 2019 to ask for an extension, the minister had done nothing — for three years.
“I have been around a long time. I have never seen anything like this,” said chief justice Raymond Zondo.
Steven Budlender SC, counsel for Lawyers for Human Rights (LHR), said the conduct of the minister, his department and its lawyers, was indicative of an overall “hostile” approach to NGOs in the immigration sector.
Bofilatos jumped to his feet. “I must take exception to the last statement by my learned friend,” he said.
Budlender responded: “I have made my submission. The facts speak for themselves.”
The facts Budlender had just recounted were the recent history of the litigation in the run-up to the hearing at the Constitutional Court — including that the minister had first gone to the high court without notifying LHR and had seemingly — though it was not clear, as LHR was not there — not placed crucial judgments before that court.
LHR was “clearly an interested party”, suggested judge Stevan Majiedt earlier. Bofilatos responded that his team’s view was that the implementation of an order was between the court and the party who had to implement it.
“The conduct of the minister has, with respect, been outrageous in this case,” said Budlender.
Bofilatos had been questioned at length by the court on the minister’s reasons for not implementing the court order, and not at least coming back to court for an extension. He had blamed the Covid-19 pandemic and the fire in parliament, both of which had happened after the order had already lapsed.
The fact he did not see fit to apologise to the court was twice raised by Zondo, with Bofilatos responding that, “on the contrary”, the minister had approached court seeking an indulgence and should “be complimented” for coming to court.
What Budlender did not mention, but what loomed large, were other instances when Motsoaledi and the department had publicly clashed with NGOs and failed to implement court orders.
Last year, ahead of the Helen Suzman Foundation’s court case on the Zimbabwe Exemption Permit regime, Motsoaledi released a statement saying the HSF was “a perfect example of the destructive role that some non-governmental organisations are capable of”.
“South Africa is now under the dictatorship of some of the NGOs with some having faceless and dubious funders. Their ultimate aim is to assist in the dislodgement of the government of the day from power by all means available,” said Motsoaledi.
The statement was met with dismay by a number of NGOs, which released a statement defending the HSF and calling on the minister to apologise. It said the minister’s statement was made “without a shred of justification” and “gratuitously smeared the NGO community as a whole”.
In court last week, justice Kody Kollapen raised a “serious” concern with Bofilatos. He said “nothing happened” about the failure to implement the court order from 2019 until April 2022 — when the minister wrote to the chair of parliament’s home affairs portfolio committee. His concern was not that the court order had not been given effect to, but the “untenable” situation that had arisen because the department was no longer able to deport illegal foreigners.
The implication was that Motsoaledi was not so much concerned about the failure to implement the court order but was only moved to act when his department was, as a result, prevented from deporting people.
“So what must we make of that, in terms of how the executive in this case took on board its constitutional obligations? It is a matter of serious concern that extends beyond the facts of this case,” suggested Kollapen.
The minister may well be questioned “beyond the facts of this case” on this score. In an unrelated case in 2017, the Supreme Court of Appeal ordered that, within a year of its order, the department should make regulations under the South African Citizenship Act. The regulations were meant to govern applications for citizenship for people born in South Africa of foreign parents through naturalisation. In the meantime, these applications could be made via affidavit, the court ordered.
In its judgment, the court said the minister’s attitude in the litigation was “consistent with ongoing attempts to frustrate and delay the respondents’ application to have their status recognised”.
The regulations are yet to be promulgated — five years after the court order, and 10 years after the Citizenship Act amendment by parliament came into force.
The lack of regulations is “causing real hardship”, says Jacquie Cassette, director in the pro bono and human rights practice at Cliffe Dekker Hofmeyr.
Cassette says even where they have obtained a court order for these types of citizenship applications, they are struggling to enforce them. “As a result, many people eligible for citizenship in terms of the section can remain undocumented for prolonged periods, which renders them extremely vulnerable.”
In another unrelated case in 2017 the Supreme Court of Appeal ordered the minister to reopen a refugee reception office in Cape Town. The Constitutional Court refused leave to appeal in 2018. In 2021, the Legal Resources Centre had to go back to the Western Cape High Court for an order declaring that minister was in breach of the SCA's order. The court ordered monthly progress reports on opening the office. The office is due to be opened this year — five years after the Constitutional Court refused leave to appeal and more than 10 years after the office was closed down initially.
The minister did not respond to detailed questions and a request for comment.
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