30 October 2023
The Constitutional Court is not impressed that the Minister of Home Affairs has ignored a court ruling for six years. It is also unimpressed with the government’s lawyer. Illustration: Lisa Nelson
The Constitutional Court has ordered Home Affairs Minister Aaron Motsoaledi and Director-General Livhuwani Makhode to pay, from their own pockets, some of the legal costs incurred by Lawyers For Human Rights (LHR) for their “appalling” conduct in a case concerning the rights of undocumented immigrants. The minister was ordered to pay 10% and Makhode 25% for their “culpability in the shambles”.
The court has also barred their former legal representative Adv Mike Bofilatos from claiming any fees for the case. This after he made two “inexplicable” ex parte (without the other side present) applications. One was made to the high court and one to the Constitutional Court. He sought an “extension” of a previous ruling that declared sections of the Immigration Act to be unconstitutional and giving Parliament 24 months to rectify the legislation.
Pending the changes to the legislation, the apex court ruled that any person arrested on charges of being illegally in the country must be brought before a court within a certain time frame for an inquiry into whether the detention was in the interest of justice. But that ruling lapsed, and six years later there was still no remedial legislation.
Because of this, magistrates were refusing to hold the inquiries. This meant that some detainees were simply being released when they should have been deported. Others were being detained for months.
The minister and director-general, without notice to LHR, then sought an extension of the Constitutional Court ruling.
In a scathing judgment, Judge Steven Majiedt said the court had now stated in five judgments that it did not have the power to extend a deadline of suspension after that deadline had expired.
He said the applicants had inexplicably vigorously opposed the LHR’s application to intervene, castigating it for pointing out the four previous decisions, saying they felt “affronted by this” and asking the State Attorney to investigate the conduct of the LHR deponent to the affidavit.
“All this amounts to extraordinarily lax and arguably even foolhardy litigating,” Judge Majiedt said.
He said the director-general, in his “feeble affidavit” had attempted to blame the inordinate delay in the enactment of the remedial legislation on the Covid pandemic and the fire at Parliament, but these had occurred long after the 24-month deadline had passed.
Another “grim” excuse was that Members of Parliament were focussed on the national elections in 2019, “an acknowledgement, on the face of it, that campaigning for re-election was far more important to Members of Parliament than meeting the deadline for the enactment of remedial legislation”.
Until the minister and the director-general were called upon by the court to state why they should not be ordered to pay costs out of their own pockets, there had been “not the remotest hint of an apology for the deplorable state of affairs and neglect of Constitutional duty”.
In his affidavit, opposing a personal costs order, the minister made “troubling allegations”, the judge said.
He claimed to have no knowledge whatsoever of the application. When he became aware of it, he was very angry, he was astounded that it had been brought ex parte. He said the steps taken to effect the legislative amendments had not been fully explained. He apologised for the “mess” and said he had fired his legal team.
The director-general also apologised and said he had not properly applied his mind.
They asked that they be given permission to withdraw the application.
LHR, however, argued that the excuses were “untenable”. The application should not be withdrawn. Instead, the court must intervene and remedy the constitutional defects.
In written submissions, Advocate Bofilatos said he had always acted properly and there could not be any accusation of negligence levelled against the legal representatives.
At worst, there was “a mere error of judgment”, he claimed.
Judge Majiedt said, “To err is human. All of us are fallible. But what we have here goes far beyond human error and good faith mistakes.”
“It can hardly be disputed that this litigation has been conducted in a dreadful manner. A higher duty is imposed on public litigants, as the Constitution’s principal agents, to respect the law … to tread respectfully when dealing with rights.
“The applicants legal representatives had abysmally failed in their duty to represent their clients in a manner required by their professional rules. The legitimacy of our judicial system will fall into disrepute if the shockingly poor conduct of litigation, as in the present instance, is allowed to continue unchecked.
“In order to mark this court’s displeasure, an order depriving the legal practitioners of their fees is warranted.”
Judge Majiedt said he accepted that the minister and director-general were largely dependent on the advice of their lawyers but that did not absolve them from culpability.
“I accept, as troubling as it may be, that the minister was in the dark about this litigation … on that basis, I take the view that he should be held liable in his personal capacity for 10% of the LHR’s costs.”
Regarding the director-general, the judge said on his own version he had admitted to gross negligence and had advanced wholly unsustainable reasons for the failure to pass the remedial legislation. For that, he must pay 25% of the costs.
Regarding the outcome of the application, Judge Majiedt said the applicants had ignored an order of the court for six years and further delay would be seriously detrimental to the interests of justice and highly prejudicial to those affected.
The court ordered that Parliament enact the remedial legislation within 12 months. The court made similar orders as it did in 2017 regarding the detention of those accused of being in South Africa illegally, including court oversight into the extent of the detention.