Court decisions are not known for their strong language. Judicial discourse is, famously, couched in the deepest restraint. And so when five Supreme Court of Appeal justices accuse a senior cabinet minister and his director-general of being “disgraceful”, “unconscionable”, “deliberately obstructive” and “dilatory”, something is up.
And, indeed, on reading the judgment I discovered that the words the justices chose were not harsh enough; what has happened is so disgusting and shameful as to beggar belief.
The case, DG of Home Affairs vs De Saude Attorneys, concerns 473 people whose attempts to get the department of home affairs to deal with their applications and appeals reached a dead end. They include applications for temporary and permanent resident status, appeals against the rejection of such applications, and so forth — matters it is the department’s everyday business to process.
From the court papers, it is apparent that home affairs has simply ceased to function; it can no longer deal with ordinary applications. Representatives from the visa company hired by these 473 people phone a call centre on their clients’ behalf. They are told that home affairs will not deal with them in the absence of a letter from their clients giving power of attorney. The letter is duly e-mailed; there is no reply. They phone the call centre again only to be told that a power of attorney is required … And so the circle turns.
For some of the individuals involved, the stakes are as high as you can imagine. Louise Batty, for instance, is an Australian nurse who came to SA in 2003. She founded a nongovernmental organisation working with disadvantaged children in Limpopo called Keep the Dream. In 2015 she applied for a critical skills visa so that she could become the MD of the organisation.
Her application was declined. She lodged an appeal and heard nothing for more than 15 months. While she waited, her visa expired. Had she left SA, the organisation she had spent more than a decade building would have collapsed. She would also have been declared undesirable and barred from returning. But without a visa, she could not work in SA and was at constant risk of arrest and deportation.
At one point, she wrote a desperate e-mail to the visa company she had hired. “My business accounts have all been frozen,” she pleaded. “I cannot operate them at all and it is payday for all the staff tomorrow. I am concerned as most of my staff live from pay to pay.”
The law firm representing the 473 won the case in the high court and home affairs was ordered to deal with their cases and pay their costs. The department appealed the decision. It is what the director-general said in his appeal that earned the disgust of the judges.
Home affairs did not deny the substance of the complaint against it. Counsel representing it in fact admitted in court that the department had simply ceased to deal with simple applications. Instead, the appeal was nakedly cynical. The 473 cases were too dissimilar to be heard together, home affairs argued, suggesting, incredibly, that each of the 473 ought to have brought a separate case. The law firm representing the 473 did not have locus standi, it was argued; the case was not in the public interest and could not be labelled a class action.
This is what made the judges so angry. Here was home affairs admitting that it had stopped performing its constitutional duties. And yet its response was not to attempt to fix the problem, but to attempt to win the case on a technicality and go on as before. Interestingly, the court papers suggest that home affairs performed these functions pretty well until 2010. It was shortly after Jacob Zuma came to office that it ceased doing its work, and ceased also to care.
We talk of a lost decade. The phrase slides easily from the tongue. Here it is in all its darkness. And this is just one government department. Across the country, a vast public apparatus has lost its soul. Will it ever be retrieved?
• Steinberg teaches African studies at Oxford University and is visiting professor at Yale.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.