The Constitutional Court has ordered home affairs minister Aaron Motsoaledi to pay 10% of the legal costs of Lawyers for Human Rights (LHR) from his own pocket in litigation the court called “deplorable” and “shambolic”.
Describing the conduct of Motsoaledi, his director-general, Livhuwani Makhode, and their lawyers, the judgment said it was “difficult to conceive of a more egregious instance of neglect of a constitutional duty”.
Makhode must pay 25% of LHR’s costs from his own pocket and the court “disallowed” their lawyers from getting any fees for the litigation.
“The egregiousness and multiplicity of the shortcomings in the conduct of the legal practitioners in the present instance warrant an exceptional order that they be deprived of their fees,” said justice Stevan Majiedt on behalf of a unanimous bench on Monday.
The minister and DG had gone to court to “revive” an earlier order from the ConCourt, delivered in 2017, which struck down parts of Section 34 of the Immigration Act as unconstitutional. Section 34 provided for the detention of people in the country illegally for 30 days without automatic judicial oversight. The court also found it unconstitutional that the 30-day period could be extended by 90 days without a requirement that the detained foreigner appear in court.
The ConCourt suspended its order for two years to allow parliament time to fix the legislation. It ordered that, in the meantime, anyone detained under Section 34 had to be brought before a magistrate within 48 hours.
It is a grim acknowledgment, on the face of it, that campaigning for re-election was far more important to MPs than meeting the deadline for the enactment of remedial legislation.
— Justice Stevan Majiedt
But parliament did not fix the legislation within the stipulated time and the department did not return to court to ask for an extension. It apparently only came back to court in 2023 because confusion caused by the delay and the court’s 2017 order had led some magistrates to refuse to conduct Section 34 inquiries. This had affected the ability of the department to deport illegal foreigners, Makhode said in his “revival” application to the court, heard this year.
During the hearing, home affairs’ counsel, Mike Bofilatos SC, was grilled by the bench on how the litigation had been conducted — including that LHR, which brought the case to court originally, was not cited as a party in the high court and that manifestly relevant judgments had not been brought to the high court’s attention, in apparent breach of lawyers’ ethical duties.
The reasons proffered for the delay were also scrutinised at length: Makhode had said that first, it was because MPs were focused on their election work ahead of the 2019 election. Then, there was the Covid-19 pandemic. Then, there was the fire in parliament.
But the lockdown was almost a year after the deadline for amending the legislation, and the fire almost 18 months after, said the judgment.
Majiedt said the explanation that MPs became preoccupied with the 2019 election was “disconcerting”.
“It is a grim acknowledgment, on the face of it, that campaigning for re-election was far more important to MP than meeting the deadline for the enactment of remedial legislation.”
The judgment said the lawyers must take the major share of the blame for “the deplorable state of the litigation”. They “abysmally failed in their duty to represent their clients in the manner required by their professional rules”.
But Motsoaledi and Makhode were not let off the hook. While the court accepted that they were “largely dependent on the advice of their lawyers”, this did not absolve them “from culpability for the shambles in this case”.
The minister was accountable for the fulfilment of the objectives of his department and, as a member of the cabinet, was accountable to parliament for the exercise of his powers and the performance of his functions, said the judgment.
After the hearing, the court issued directions asking Motsoaledi and Makhode why they should not pay the costs of the “ill-conceived” application from their own pocket. In an affidavit to the court, Motsoaledi apologised and said the application was launched behind his back.
The judgment said it was prepared to accept this and therefore ordered him to pay 10% of the costs of the litigation. Though Makhode had also apologised, he was “in a different position” because he had effectively admitted to gross negligence when he said he had failed to apply his mind to the contents of his own affidavit and had failed to consult the minister before submitting an affidavit on the minister’s behalf. Then there were the “wholly unsustainable reasons for the failure to pass the remedial legislation”.
If an illegal foreigner is detained, they must be brought to a court within 48 hours and a court must consider if it is in the interests of justice for them to be detained. If not, they must be released, subject to reasonable conditions.
“These are serious aberrations,” said the judgment, explaining why he was held personally liable for 25% of the costs.
Because of the uncertainty caused by parliament’s failure to fix the legislation, there was “confusion and uncertainty”, said the judgment. Some magistrates were unwilling to confirm detentions beyond 30 days, and detainees were simply released even though they should have been deported. On the other hand, some immigration officers were detaining people longer than 30 days without bringing them to court “further violating their rights to liberty”, said Majiedt.
These consequences necessitated the court’s intervention, he said.
It has given parliament another year to fix the legislation it first ordered to be fixed in 2017. In the meantime, it has put an interim arrangement in place: an immigration officer considering whether to arrest and detain an illegal foreigner must consider whether it is in the interests of justice to do so. If he concludes it is not in the interests of justice, that person must not be detained.
If an illegal foreigner is detained, they must be brought to a court within 48 hours and a court must consider if it is in the interests of justice for them to be detained. If not, they must be released, subject to reasonable conditions.
If the court thinks they should stay in detention, they can order that — but not for longer than 30 days. Within 30 days, that person must be brought back to court for the court to reconsider the question and, if the court thinks further detention is warranted, may order that for not more than 90 days. When they are brought to court, they must be allowed to make representations.
The ConCourt ordered that if parliament did not enact remedial legislation within the year, this interim arrangement will continue to apply until it does.
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