The South African Supreme Court of Appeal recently threw out the department’s defense of its actions, describing them as ‘unconscionable … deliberately obstructive and dilatory’.
Delays and wrongful rejections by certain officials in SA’s home affairs department are resulting in unnecessary court cases that waste resources and cost the country millions.
As specialists in helping foreign clients to secure the necessary visas and permits to live and work in SA, De Saude Attorneys has seen more than its fair share of court appearances. Frustratingly, most of these should not be necessary at all.
Most court cases stem from the wrongful refusal of applications or delays in processing applications, which can push back outcomes for years. Appeals against wrongful refusal can take years more to process, leaving applicants without status in the interim and driving them to court.
These lawsuits are costly for everyone concerned since home affairs must allocate its already stretched resources to go to court. The cost per case can run into hundreds of thousands of rand, and with home affairs defending a reported average of 50 cases per week, the total costs to the state are staggering.
Challenging this situation, De Saude Attorneys and Visa One went to the Western Cape High Court and Supreme Court of Appeal earlier this year, arguing that “the department has, for years now, failed at a structural level to determine applications made to it in any reasonable or lawful time period, including … 473 applications the applicants now bring before this court”.
We noted that even simple applications to the department can take years to be resolved, if they are resolved at all. We therefore sought to compel the department to comply with its obligations in terms of the constitution and applicable legislation.
Describing the department’s stance on litigation as “deliberately obstructive and dilatory”, the Supreme Court of Appeal said its approach was “unconscionable, especially coming from a state department”. The department’s appeal against the high court finding in favor of De Saude and Visa One was dismissed with costs.
September 19, 2017. Pinetown Home Affairs . Picture: THULI DLAMINI
While this was a noteworthy victory, the challenge will remain as long as the department continues to operate in such a way that litigation becomes the only way for applicants to get a fair hearing.
The principles of “batho pele” (people first) require government officials to be polite, open and transparent and deliver good service to the public, and there are many dedicated home affairs officials who take this to heart. Unfortunately, some adopt an obstructionist attitude and do not appear to focus on public service, or indeed the country’s economic development.
According to recent procedures implemented by VFS on instruction of home affairs, foreigners may not file more than two appeal applications (regardless of whether the first two refusals are wrong) and may not file any appeal application later than the 10 working days provided (regardless of the reasons for the late filing). In practice, this still means that if an applicant has received two refusals — even if these refusals were incorrect through no fault of their own — they have no further avenue for appeal.
Normally, if circumstances beyond the applicant’s control have precluded them from filing their application within the 10 days allowed, condonation for late filing would be requested and would be granted where such good cause could be proved.
For example, where an applicant has fallen seriously ill during the preparation of his appeal application or lapsed into a coma immediately upon taking receipt of the negative decision against him, they cannot reasonably be expected to personally submit an appeal application within the 10 days allowed for such submission. But the department’s new policy could mean refusal, even when good cause can be proved.
The applicant against whom a wrongful decision has been taken twice is left with no recourse but to approach the court to have the matter lawfully adjudicated, and the department’s own position appears to be that these applicants should approach a court for assistance. This appears to encourage litigation and will no doubt result in an additional onslaught of court cases involving the department, to the severe detriment of all parties involved.
An already overwhelmed, understaffed and underfunded department should not invite legal action against itself in this manner, particularly when this could be easily avoided by allowing the adjudicator to exercise his or her authority to grant condonation on a case-by-case basis.
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