Litigation against Department of Home Affairs

Meeting report

Department of Home Affairs: Litigation issues

Mr Mkuseli Apleni, Director General: Department of Home Affairs (DHS), said the Department was custodian, protector and verifier of the identity and status of citizens and other persons resident in South Africa. This made it possible for people to realise their rights and access benefits and opportunities in both public and private domains. Secondly, the Department controls, regulates and facilitates immigration and the movement of persons through ports of entry. It also provides civics and immigration services at foreign missions, and determines the status of asylum seekers and refugees in accordance to international obligations. The Department thus makes a significant contribution to ensuring national security, enabling economic development and promoting good international relations.

Litigation against the Department was primarily by way of motion and action proceedings. Motion proceedings involved instances where the applicants approach the court seeking a specific relief, such as release from detention, compelling the Department to make decisions on outstanding applications, or where decisions have been made, to review such decisions. Action proceedings entailed plaintiffs seeking damages following arrests which were alleged to be unlawful, motor vehicle accidents involving departmental vehicles, disputes around tenders and contracts between the Department and suppliers. Some of the litigation against the department would also be labour matters, where employees approach the court for specific relief or damages. The most popular of these labour disputes were instances where an employee who was disciplined by the Department and received a negative outcome, would launch a review application at the Labour Court seeking the setting aside of the negative award. 

In the nature of litigation, there was also the principle of dominus litis, which means master of the suit. This was a situation where the person who had a real interest in the decision of the case was the plaintiff, and not the defendant. This meant the Department had no control over the litigation process in terms of finality. Such claims remained in the Department’s contingency liability report until either the matter proceeded to trial and was finalised, or the plaintiff withdraws the claim against the Department.

The Directorate for Litigation within the Department was responsible for civil litigation by or against the Department. The Directorate litigation was also responsible for enquiries and legal opinions pertaining to possible civil litigation by and against the Department. The State Attorney represented the Department in court, and legal officials within the Department were excluded from appearing in court, although suitably qualified. The State Attorney received its mandate from section 3 (1) of the State Attorney Amendment Act of 2014, which gve it the responsibility to represent the Department in court.

Mr Apleni  presented a table which showed litigation trends. Notable was the high number of cases brought against the Department through immigration matters and asylum seeker management -- 1 232 and 1 900 cases respectively for the 2016/17 year. In total, there were 3 874 cases against the Department in 2016/17, including cases from the civil service, summonses and labour matters. The Department currently had a contingent liability amounting to R2.047 billion arising from civil claims. He provided details of the different types of contingent liabilities.

He described some important cases that the Department was engaged in.

Fireblade Aviation (Pty) Ltd v Minister of Home Affairs:

The applicant (Fireblade) brought an application at the North Gauteng High Court seeking orders, among others, declaring that on 28 January 2016 the Minister approved an ad hoc international customs and immigration service of a corporate fixed-based aviation operation to be conducted by the officials of the Border Control Operational Co-ordinating Committee (BCOCC). The Minister had opposed this application on the basis that the Minister did not approve such an application by Fireblade, and had not made a decision by 28 January 2016. According to the Minister, a decision was taken only on 27 October 2016. Fireblade had launched a second application to review the decision by the Minister. The court held that the Minister did approve such application on 28 January 2016 and therefore such decision was of force and effect and may not be renounced or revoked by the Minister without due process, and may be implemented and relied on by Fireblade. The Department was currently studying the judgment in order to decide on a way forward regarding an appeal.

Samotse v Minister of Home Affairs:

The applicant was a Botswana national who had entered the Republic illegally, running away from the authorities in Botswana following accusations of murder. He was jailed for six years in the Republic following crimes he committed while in the Republic. Upon his release, he was handed over to immigration as required by the Immigration Act for the purposes of deportation as an illegal foreigner. However, the Department was aware that following the Constitutional Court judgment of Tsebe, Phale and Others, Samotse could not be handed over to the Botswana authorities without first seeking and obtaining assurance from the Botswana authorities that even if he was convicted of a crime that carried capital punishment, and that if such capital punishment was imposed, it would not be executed. Botswana had vehemently refused to honour the terms of the Treaty entered into with South Africa, and as such South Africa was duty bound not to hand over Samotse to Botswana. However, in an unfortunate twist of events, Samotse had been handed over to Botswanan authorities by some immigration officials stationed at Polokwane. These officials had been disciplined. This conduct by immigration officials had resulted in the Lawyers for Human Rights (LHR) launching an urgent application at the North Gauteng High Court against the Department. The Court had ordered the Department to do everything possible to secure the safe return of Samotse and declared the conduct of the Department unconstitutional and unlawful. Somehow, Samotse had managed to return to the Republic on his own, thereby saving the Department possible contempt proceedings.

Mr Apleni said it was unfortunate that the Constitutional Court judgment of Tsebe, Phale and Others continued to be a safe haven for Botswanan citizens who had committed serious crimes such as murder in Botswana. There was a later case of Keitikile Jampe -- also a Botswana national -- who had run to South Africa after killing his girlfriend. Jampe remained in the Republic and could not be deported. He was required to report to the inspectorate. The conundrum that had been created by South Africa’s jurisprudence was that none of these people could be legalised under the Immigration Act or Refugee Act.

Lawyers for Human Rights v Minister of Home Affairs and Others.

In this applications, the LHR were representing foreign nationals seeking orders to declare section 34 (1) (a and (d) of the Immigration Act invalid and unconstitutional on the basis that illegal foreigners did not automatically appear before a magistrate to confirm their detention within 48 hours of their detention. The court held that section 34 (1) (a) and (d) of the Immigration Act was unconstitutional and indeed invalid. The court further held that all illegal foreigners detained must automatically appear before a magistrate to have their detention confirmed. As a consequence, the Department was given a period of two years to amend the legislation accordingly. In the interim, the Department was ordered to implement the 48-hour appearance while in the process of amending legislation. To this end, the Department had liaised with the Department of Justice and Constitutional Development, the National Prosecuting Authority (NPA), as well as the South African Police Service (SAPS) in order to implement the judgment. A magistrate’s court was established and designated at Lindela Repatriation Centre specifically to ensure the Constitutional judgement was given effect to.

Kos and Six Others v Minister of Home Affairs

The applicants, who were all transgender, approached the Western Cape High Court for an order to compel the Department to change their genders and issue their spouses/wives new identity numbers reflecting their gender change. The current legislation – the Alteration of Sex Description and Sex Status Act -- allows any person to change his or her gender and be recognised as such, provided that it was in full compliance with the requisites. In this case, however, the Department had challenges with the change of gender, as these three applicants had changed their genders while still married to the opposite sex. The Marriage Act did not allow for same sex marriages, and these applicants did not want to be removed from the marriage register or divorce. This posed a legal challenge to the Department. The Department had a legislative regime for same sex marriages, which was the Civil Union Acts, under which applicants could be accommodated and were advised so accordingly. However, these applicants refused this advice and insisted that although they had undergone a sex change, they were still happily married and did not want to divorce their spouses. The also contended that they did not qualify for divorce as their marriages had not irretrievably broken down and neither spouses were mentally ill. To this, the court held that the Department may not simply refuse to accept an application. The Department was obliged to accept and make a decision under the Promotion of Administrative Justice Act (PAJA) on such applicants, instead of simply not making a decision.

Tashiq Ahmed and Others v Minister of Home Affairs

Asylum seekers approached the Western Cape High Court to seek an order to change their status from asylum seekers regulated under the Refugee Act to a different visa regime regulated under the Immigration Act. The Department opposed this application on the basis that the Immigration Act did not allow a change of status within the Republic. Further, the Department wanted to curb the abuse of our legislative regimes by asylum seekers. The Western Cape High Court had ruled in favour of the asylum seekers. The Department had appealed to the Supreme Court of Appeal, which had ruled in favour of the Department. The Department had been notified that asylum seekers had petitioned the Constitutional Court, and the Department was opposing this application.

New Dawn Technologies

This was a claim that the tender invitation for the expansion of an Electronic Document Management System (EDMS), where the State Information Technology Agency (SITA) had recommended New Dawn Technologies, was binding on the Department of Home Affairs. The matter was being defended on the basis that no signed contract existed between the Department and New Dawn Technologies. The Department had received the plaintiff’s application for summary judgment set down for 10 September 2010. However, the Department had filed a notice of Exception on 11 June 2010 and requested the plaintiff to withdraw the application for summary judgement. The amount of R1.375 billion had been reduced to R602 million.

Mr Apleni also informed the Committee of other important cases, such as Double Ring (Pty) Ltd v Minister of Home Affairs, Matloga and Others v Minister of Home Affairs, Moremi and 34 Others v Department of Home Affairs, and Scalabrini Centre and Others v Minister of Home Affairs.  The Department was looking at R37 million in legal fees this financial year, which was a drop from R50 million in the previous financial year.

Legal Structure

Regarding the legal structure, there were some approved legal services -- one Chief Director of Legal Services, a Senior Secretary and an Assistant Director. All these were funded and filled.

The Directorate for Contracts had the responsibility of drafting commercial contracts, service level agreements and legal opinions. For this, there was a Director and Secretary, whose posts were funded and filled.

The Directorate for Drafting was responsible for the drafting of both primary and secondary legislation, the preparation of legal opinions and the scrutiny/drafting of international agreements and memoranda of understanding. In this division, there was a Director, a secretary, a senior administrative officer and six legal administrative officers. All posts were funded and filled.

The Directorate for Litigation dealt with civil litigation by or against the Department. It also handled legal enquiries and legal opinions pertaining to possible civil litigation by and against the Department. There was one director, a secretary, three senior legal administration officers and four legal administration officers. The legal administrative officers dealt with over 3 000 cases among the seven of them within a year.

The Directorate of Labour Relations was primarily responsible for managing collective bargaining, grievances, disputes and disciplinary matters. There was one director, a secretary, two alternative dispute resolution (ADR) labour relations officers, and four Labour relations officers. All the posts were filled and funded.

Taxation and Legal costs

The challenges the Department faced included taxation and legal fees.

Regarding taxation, there was a duty on a client’s attorney to litigate in the cheapest way possible. This in effect meant that attorneys had a duty of care to ensure that either party was not billed exorbitantly and unfairly. It was for this reason that the courts had appointed taxing masters, whose role was to tax the bills before they were settled and paid. The Department’s biggest concern was that the Office of the State Attorney was not always geared up to deal with taxation. Taxation was a specialised field of law and hence there were several firms that specialised in the legal costs. Due to the inability of the State Attorneys to handle taxation matters, the Department was faced with bills that were not properly taxed, and was therefore paying far more that it should. The problem of exorbitant taxed bills was experienced in various offices of the State Attorneys, including Venda and Mthatha.

The Department incurred legal costs even in instances where the Department had successfully defended or opposed matters, such as where the plaintiff was a foreign national and had no realisable assets for the Department to attach in order to recover costs. Legal costs had increased considerably over the years compared to earlier years, where they would hardly exceed R5 million. The increase was mainly due to opportunistic litigation, as well as delays by the Department in timeously adjudicating on applications of visas, the processes followed by the Standing Committee for Refugee Affairs (SCRA) and the Refugees Appeal Board (RAB), and continued detentions of illegal foreigners by the inspectorate in Lindela. Costs in such matters were always awarded against the Department. However, in instances where cost had been awarded in favour of the Department, the Department had been unable to recover as some applicants were indigent foreigners, and in most instances were asylum seekers.

Mr Apleni  gave an account of the interventions taken, and those still to be taken, to address the challenges. The challenge with taxation was that though State Attorneys were found wanting in taxation matters, they nonetheless proceeded with litigation without first forwarding the untaxed bills to the Department to decide whether or not to oppose such bills. The situation was so prevalent in the Eastern Cape that the Department had been left with no choice but to engage the services of a private legal costs consultant to stem the tide. The Department was in the process of embarking on appointing experienced legal consultants to assist with the taxation of legal bills. Their mandate included representing the Department at taxation proceedings to ensure that bills were taxed fairly, transparently and that the Department paid what it was liable for.

In a further effort to reduce legal costs, the Department had had correspondence with a few identified attorneys who regularly litigated against the Department, particularly those who brought litigation for non-adjudication/delay in adjudicating immigration permits or visas, to provide lists of clients with outstanding applications to avoid unnecessary litigation. A visible reduction of similar litigation was noticed following this intervention. This would hopefully result in reduced litigation costs against the Department.

There were applications compelling the Department to adjudicate and make decisions on outstanding immigration visas/permits, unabridged birth certificates, certifications in terms of section 27 (C) of the Refugee Act by the Standing Committee for Refugee Affairs, the hearing of appeals by the Refugee Appeal Board, reviews by failed asylum seekers, the release of illegal foreigners based at Lindela for the purposes of deportation, as well as notable instances of fraud litigation cases. In order to alleviate these trends, the Department had invoked various measures to curb the proliferation of these kinds of litigation trends. These included meetings and consultations with various offices of the State Attorney, where trends were identified to be prevalent. In some instances, efforts were made the engage the judiciary on fraudulent litigation. Attorneys in private practice representing foreign nationals in outstanding immigration permits/visas were engaged to first advise the Department of clients with outstanding applications before resorting to litigation.

Mr Apleni concluded that as a way forward, the Department had three key areas it was focusing on. Firstly, engaging the State Attorney’s office was paramount in addressing the challenges surrounding the payment of legal fees and taxation. Secondly, the Department was considering at length the appointment of legal officials per branch. Finally, it was of the opinion that a budget spilt per branch for legal costs would be a necessary step to take.

 

Discussion

The Chairperson said he was worried about the list of names of those involved in cases that were ongoing or not yet ongoing. He asked whether there could be any details on those lists that may pose a security threat to the Department and should therefore remain confidential. It would, however, be important that the list, or any specific information, should be available to Members who may take an interest in it. He urged that the Department did this without breaking any of its laws.

He said the Committee had picked up that the origin of litigation was something the Department had very little it could do about. What was critical was how the Department responded, and whether it possessed the necessary capacity to do so. The fact that the Department could not defend itself because the State Attorney did that, posed a problem, as the State Attorney serviced several Government departments and their capacity should be questioned. He wondered if the capacity of the State Attorney was not frustrating state organs. The Department must have its own ability to manage its cases, to ensure that the cases were expedited, with the necessary follow ups, reviewing regulations against the Constitution and legislation.

From the presentation, it appeared that the Department was ‘thin,’ with officials who ended up being ‘Jacks of all trades and masters of none.’ Three senior legal officers in litigation, who had to deal with different disciplines of law, were perhaps not qualified in all fields of the law which posed a challenge. Because of this, flaws in their work could be expected, because they were not specialists and paying 100% attention to issues. He said it was important to address those challenges.

Mr M Hoosen (DA) said he wanted the list of names, and further said that these issues were open issues as they were in court and part of public record. He also disagreed with the Chairperson with regard to the opinion that there was little the Department could do, arguing that there was much that could be done to reduce the propensity for risk which it faced on a regular basis. It would be impossible for the Department to be litigation free, but some cases could be avoided. In some instances, litigation was due to the officials not doing their job, and this had an impact on the Department. A human error behind the counter could cost the Department millions of rands, regardless of whether the Department won the case or lost it.

In the case of the Lawyers for Human Rights v the Minister of Home Affairs, it was amusing that even with the legal muscle available, they could not pick up such things in the law. Now the National Assembly had to change the law -- a process which had been done before. He said this was why the government keeps losing cases against the Democratic Alliance. Resolving of some of these matters would cost the government a lot of money.

The interventions the DG had mentioned were encouraging. Although he was not a lawyer, he knew that before going to court, a letter of demand was issued, and lawyers were ready to engage at that time. He said people did not go to court without first engaging the Department, indicating what they were planning to do. He was aware of Permanent Residence Permits (PRPs) that took years before they were adjudicated. People got tired of waiting, with no one in the Department informing them of the status or any indication of when the matter could be resolved. If people knew and had a sense of direction, then some of the litigation against the Department would be reduced. He knew some people in those situations who would come and complain to him, and he would advise them to approach the courts for a relief.

Mr Hoosen also asked how many cases the Department had lost. What had happened to the staff who had deported the Botswanan national? What had caused the significant decrease in the cases between the 2013/14 and 2014/15 financial years? He asked if the legal fees reflected in the report included all legal costs, commenting that money spent on legal fees could have been used to provide services. As Members of Parliament (MPs), they were aware of the complaints people had on the ground regarding service delivery. The DG had been in court recently, and that was going to cost the Department money. He asked how much that would cost the Department ultimately and how the money was going to be recovered from the Minister. He gave the DG the option of not answering the second part of that question, but felt that because of the error on part of the Minister, she should have to pay for it. He asked if the Department was willing to recover the money, adding that when politicians took decisions that they were not allowed to take, it costs the government and affects the people on the ground.

The Chairperson responded that the Minister had said that when the court case was finalised, she would come back and speak to the Committee. The new Minister would take responsibility for what had happened, and if anything was to be paid, the new Minister would pay. He said the Committee must await finality on the matter.

Mr Hoosen said being told the Committee must wait all the time was nonsense. He said the Chairperson deliberately delayed responses, and that he would prove these delays when the Committee dealt with the minutes. The DG should indicated whether he wanted to answer or not, and the Chairperson could not offer to answer on his behalf.

The Chairperson said the tone in which Mr Hoosen had used the term ‘nonsense’ was insulting.

Mr Hoosen responded that Chairperson showed disregard for the work the Committee did here, and that was the insult.

The Chairperson said he would never insult Mr Hoosen, and use derogatory words. What he expected was a debate and not insults. Mr Hoosen must present facts. The meeting was trying to speak on a matter involving somebody who was not present, and if the DG responded there could be consequences. For the matter to be adequately addressed, it would be better for the new Minister to be present. Only then could some of the questions be raised. It was unfair to request the DG to answer on the actions done by somebody else. It was unnecessary to hurl insults. A message could still be communicated without insults or arrogance. Some questions needed to be directed to the appropriate persons who had the capability to answer them.

Mr Hoosen responded by saying the Chairperson prevented people from answering pertinent questions that Members posed.

Ms D Raphuti (ANC) clarified the situation by saying Mr Hoosen had given the DG the option to either answer the question that referred to the former minister, or not, and therefore it could be left to the DG to respond or not.

She said it was unfortunate that the Department was being used as a “get rich quick scheme” by some people who lodged claims at the courts and sought exorbitant fees. In terms of the principle of dominus litis presented by the DG, she asked if the Department could not ask what the people intend to do with these existing cases. She asked the DG to show the contingent liabilities as a percentage to see what they really entailed. She was sceptical of the lawyers from the Attorney General, citing their limited or poor insight into the some of the cases as the reason. She considered that this could be one of the reasons that cases were lost. This was something to consider at length for the purposes of closing the gaps. Regarding labour cases, something had to be done to guard against employees acting fraudulently within the Department. It was pleasing to hear that the Department was challenging some of the cases. She commented that some parties wanted a borderless South Africa, and opined that it would be an immature development with serious consequences, as it was important for people to know where they came from.

Finally, she said there were a lot of “leaking taps” within the legal division of the Department, with no muscle to avoid or prevent the challenges that had been faced. She urged that the Department must employ people who were specialised in certain areas of law, like immigration. She recommended the head of legal be at the level of deputy director, and not chief director.

Ms H Hlope (EFF) asked for clarity with regards to the State Attorney representing the DHA. There were legal persons within the Department and she asked why the DHA could not simply take its own cases and represent itself. She opined that the legal team within the DHA was unnecessary if they could not represent the Department in court. With regard to finance and supply chain management, she said the information must be available to Members because there was a need to fully understand why money was being paid and what went wrong in disputes around tenders and the awarding of contracts. It was important that they were privy to such information, especially in light of tender and corruption scandals that had rocked the nation. There could be some more information missing in the presentation, and it was necessary to give the details to the Committee. The issue involving the son of the former Minister had not been presented before the Committee, and she believed it had something to do with tenders. She asked what solution was available over the matter of the Civil Union Act and the Marriage Act.

With regard to the Fireblade case, she asked how long the Department was going to take studying the judgment. A letter had been written by the EFF to the new Minister, asking her to appeal the decision of Fireblade. There were some rumours that the former Minister did not want the Oppenheimers, and was favouring the Guptas. She asked the DG to comment. She also asked if foreign mission staff were included on the litigation statistics presented. She pointed out the New Dawn case was an old case, and questioned if the electronic document management system was affected by this case. 

Ms T Kenye (ANC) said the Fireblade case had grey areas, with different dates cited as the day the former Minister had made a decision. There was a problem when these dates reflected on 2016, yet 2018 was approaching, with no clear time frames from the Department on their next move. She asked for the date on which the judgment was issued. What did the Department think should be done to avoid a recurrence of Botswanan nationals who committed crimes in Botswana making South Africa their safe haven? She expressed serious concern that there were criminals roaming around the streets of South African cities and towns.

She referred Members to the matter of upgrading the positions of 31 employees, and adjusting their salaries accordingly, costing about R14 million. She asked if it was possible to use the Performance Management and Development System (PMDS) to avoid further litigation. The PMDS meant upgrading was done according to performance. She also touched on the Directorate for Litigation, and suggested that there may be need to have a deputy director to assist, as it may be too much work for one person. She also suggested the Department compare the use of more officials against the use of more legal experts to ensure a faster litigation processes.

Mr A Figlan (DA) said that the Minister had promised that she would come and explain what had happened, but had not pitched up. He said the Chairperson had to stop the habit of answering on behalf of officials. He asked the DG about the structures he had presented, questioning whether he had done research into what the structure he was proposing was going to be like. He raised the issue of old cases, asking whether the State Attorney could work on striking those cases from the court rolls. When the Committee requested information, it should be made available. For Parliament to exercise Parliamentary oversight, it had to know what was happening, so information was key.

The Chairperson said he felt attacked by the Members, who seemed to want him to be a robot, but this was not going to happen. As the Chairperson of the Committee, he had the responsibility to protect or defend officials when they were treated unfairly. If documents posed a security risk or had sensitive information, then they should be adjusted and could be given to Members. One had to expect officials to respect laws that may otherwise prevent them from disclosing certain information.

DHA’s response

Mr Apleni referred to documents, and said it was not a case that the Department could not do it, but that it had to be done in a manner that that did not compromise the process.

He said human error was common and could be addressed. He gave an example of the immigration officials in the Samotse matter, where the immigration officers had been dismissed. The dismissal had been challenged. Around the issue of staffing, a committee had been created. This committee had legal, finance and counter corruption experience, so that before charging a person, the evidence was tight. There was a record book that had a list of cases the Department was involved in. This list also specified which ones had been won or lost, to serve as a learning curve.

The Department did receive letters of demand. However, this did not mean the parties would agree, and therefore matters ended up in court.

With regard to the significant drop between the 2013/14 and 2014/15 financial years, he informed the Committee that this had been because of one case which had a huge sum of money being claimed, that had been done away with.

Regarding the question of dominus litis, the Department did approach the people in those matters to close the cases, but they were not forthcoming in most instances.

He agreed that the capacity within the legal division of the Department was something that had to be considered and taken seriously. The State Attorney had to be approached first, for that was the system. A case was as strong as the information given to the lawyer, and that was why specialists were essential to have.

With regard to the Fireblade case, the Department had 14 days to lodge an appeal against the judgment. The judgment had been made on 27 October, so an appeal had to be made by 18 November.

Foreign mission staff had been included in the numbers compiled in the report.

The New Dawn case was not holding the Department back. He explained that when one applied for a smart identity card or passport, everything was now kept on the system. The old system was no longer functional.

Mr Apleni said he did not want to comment on the Gupta vs Oppenheimer question.

Regarding the alleged criminals from Botswana, the Constitution of South Africa and some conventions could not be violated.

He said that the structure of the legal division was not a problem, but it was the money that was problematic.  

With regard to delays in permanent residence permits, this was because 80% of them were based on marriages. The regulations governing those were tighter than those regulating investors. There was an inspectorate who had to go and inspect, to ensure the Department was not awarding permits to people in marriages of convenience. The report which the inspectorate submitted was essential in the adjudication of applications for permanent residence permits. This meant the process took long, especially considering that there were few inspectors employed.

The adoption of minutes was postponed to next week.

The meeting was adjourned.