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Department of Home Affairs Annual Report omits information on how much money department has spent defending legal claims against it
Legal claims against department cost South African public and individuals being denied services
DA to submit further questions on legal costs
The pending legal claims of R6.862 billion against the Department of Home Affairs have been well publicised since the release of the department's 2009/10 annual report during last week. However, what the annual report does not tell the South African public is how much has been spent by the Department on defending legal challenges and on paying the costs of those challenges during the past financial year. This is most concerning, as in many instances, the legal challenges are ones in which the Department has failed to deliver basic services, or acted in a potentially unlawful manner. R6.7 million was budgeted for legal consultants, but the actual costs incurred for such consultants was R23.7 million (up 124% from R10.6 million in 2008/09). And yet, no indication is given of actual costs incurred in settling these claims against the department.
A quick review of cases heard in our courts during the 2009/10 financial year reveals a disturbing trend with respect to this Department. The following selection of cases, and comments by attorneys and judges involved, provides a glimpse into the level of dysfunctionality that leads to the department losing one legal battle after another:
• May 2009, Lawyers for Human Rights press release
"On 10 May 2009, the day the Department of Home Affairs welcomed its new Minister, Home Affairs illegally deported an asylum seeker to the Democratic Republic of Congo...The deportation is a blatant violation of South Africa's domestic and international legal obligations, which prohibit returning an asylum seeker to an area where he risks persecution. Further, the deportation occurred just two days before his case against Home Affairs was to be heard in the Johannesburg High Court.
This is the fourteenth court case brought by LHR in the past three months challenging the unlawful arrest and detention of asylum seekers. In eleven of these cases, the court ordered the release of the applicant from Lindela Holding Facility. In the remaining two cases, Home Affairs agreed to release the detained person on the morning of the court hearing, after the detainee had been subjected to months of unlawful detention."
• January 2010, South Gauteng High Court, Johannesburg, Aruforse v Minister of Home Affairs and Others
Judge Meyer commented: "A detained person has an absolute right not to be deprived of his freedom for one second longer than necessary by an official who cannot justify his detention... ordered to cause the immediate release of the applicant from the Lindela Holding Facility in Krugersdorp...The first and second respondents are ordered to pay the applicant's costs of this application."
• May 2010, News 24: South Africa's Lawyers for Human Rights at the weekend secured the release of a Zimbabwean human rights defender, Petro Chatiza at the South Gauteng High Court... Gina Snyman of Lawyers for Human Rights represented Chatiza... "Home Affairs have caused this man an abhorrent injustice. Our courts have consistently held that a person should not be detained for one second longer than authorities can justify the detention, but Home Affairs acts with no urgency or recognition of the rights of the people it detains," said Snyman in a statement. "It's also appalling that our client had to borrow a smuggled telephone from a fellow detainee to get word out of his detention, and that we only knew of it via Amnesty International in London."
• July 2010, Eastern Cape High Court, Grahamstown, Ncube v Minister of Home Affairs and Others
Review of refusal to grant a work permit
Judge Revelas commented : "The history of the matter...serves to illustrate the continued unfair treatment of the first appellant and the irrational and malevolent manner in which his attempts to legalise his status were dealt with by Home Affairs..."
The Department is currently facing a court challenge by four couples, in an attempt to force the issue of the relevant spousal permits, while two asylum seekers have initiated a court case in Cape Town to force the Department to consider asylum applications at any centre in South Africa. The Forum of Immigration Practitioners of South Africa (FIPSA) is dealing with many permit applications which are taking the department between four and six months to process, despite the statutory requirement that such applications are to be dealt with within 30 days. FIPSA is considering legal action to force the Department to comply with its own laws.
All of these cases, as well as the many others, along with the attached costs, are as a result of the Department simply not doing its job.
It is concerning when people have to take the Department to court in order for it to perform its mandated duties. Furthermore, this comes at great expense not only to the South African public - money which is now subsidizing the legal battles of a dysfuncional Department - but also at great cost to the person who is being denied services from the Department.
The Democratic Alliance (DA) will submit questions to the Minister in this regard, and will make the reply public. More importantly, the DA will continue to use all available tools to compel the Department to deliver on its own value statement and become efficient and professional, thus obviating the need to defend patently justified court challenges.