Home affairs minister Aaron Motsoaledi could find himself in contempt proceedings next year after failing to comply with a court order to review a foreign worker’s prohibited status.
The Western Cape High Court ruled last week he had failed to meet its deadline of November 30 for a decision regarding the prohibited status.
In October 2023, the court ordered the minister to adjudicate an application by the foreign national, referred to as TC, after home affairs declared him a prohibited person.
The status prohibits him from qualifying for a visa or gaining legal entry to SA, as a result of having a fraudulent work permit. However, it was TC himself who in 2016 informed the department about the fraudulent permit; an unknown third party had acquired the document and given it to TC, which he initially believed to be genuine.
Home affairs nevertheless barred him from the country. TC applied in terms of the Immigration Act to be declared a non-prohibited person, allowing him and his family to continue to work and live in SA despite his initial entry being fraudulent.
Home affairs director-general Tommy Makhode rejected that application in 2021 and the following year TC requested Motsoaledi to review the decision, but hadn’t receive a response a year later.
In September TC approached the high court in bid to compel a decision from Motsoaledi. On the date of the hearing, home affairs and TC reached an agreement that the minister would make a decision within 40 days. The agreement was made an order of court in October.
TC says his lawyers have since corresponded with home affairs officials to no avail and he returned to court on an urgent basis.
“It is irrefutable that [TC] is prejudiced by the delay in that his status and that of his family in SA remains in limbo," judge James Lekhuleni said. “The bureaucratic inefficiency within the department of home affairs violates his family’s rights to dignity and the right to live together without the daily fear and threat of his possible deportation.”
Lekhuleni rejected the department’s argument that Motsoaledi wasn’t aware of the urgency of the matter. “I find it strange and opportunistic to argue that the minister is not aware of this application,” he said, noting that the minister’s lawyers were all in court and had corresponded with TC’s attorneys.
“There can be no doubt that the minister is in contempt of court”. However, TC had not brought a contempt of court application, seeking only a decision on the matter at hand.
Lekhuleni ruled that should Motsoaledi fail to address the matter within 10 days, TC could use the same court papers to bring a contempt of court application next year.
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