In an extraordinary affidavit filed at the Constitutional Court, Home Affairs Minister Dr Aaron Motsoaledi has lambasted officials in his own department for allegedly going behind his back and filing court documents that he was not aware of.
Motsoaledi has promised to discipline all the officials involved in the process, saying they had provided “lame excuses” to the court.
Motsoaledi and the Home Affairs director-general Livhuwani Makhode are facing a potential personal costs order, which would see them paying the legal fees in the case out of their own pockets if they are unable to explain why the department ignored a court order for three years and then failed to apologise.
They have also been asked to explain why the department chose to take the extraordinary step of launching two ex parte applications, effectively going to court without informing interested parties.
“I would like to take this opportunity to extend my sincere apology to the Chief Justice, all judges of the high court and Constitutional Court, the President of South Africa, minister of finance, LHR [Lawyers for Human Rights] and its legal representatives and the people of South Africa for the mess created by officials of the Department of Home Affairs,” said Motsoaledi.
“As the executive head, I am extremely embarrassed by the actions of the officials. State resources cannot be deployed to bring unmeritous [sic] ex parte applications before the courts.”
The Constitutional Court heard the application, brought by the department, on 25 May 2023 and at the time Chief Justice Raymond Zondo questioned why the court should not “regard this as a pathetic dereliction of duty”.
Zondo and several other justices asked Home Affairs advocate Mike Bofilatos SC why the department had not tendered any apology after missing by three years the deadline to amend legislation.
Read more in Daily Maverick: Zondo questions ‘pathetic dereliction of duty’ after Home Affairs ignores ConCourt order for three years
Cavalier and contemptuous attitude
Following the hearing, the court issued an order asking Motsoaledi and Makhode to explain why they should not pay for the legal costs. Motsoaledi said he was shocked to learn of what had happened in court when reading about it in Daily Maverick, as he knew nothing of the case before it went to court.
“After reading the article, I was shaking with anger as I knew that I had not instructed Mr Mike Bofilatos SC to launch any application in the Constitutional Court on my behalf and the DHA [Department of Home Affairs]. I immediately confronted the director-general and demanded a report from him and the legal services division, as in 2020 I had issued an instruction that no affidavit in any proceedings in which I am cited as a party should be filed in court without my approval.”
While awaiting an internal report, Motsoaledi became aware of the ConCourt order of 7 June in which the Chief Justice called on him to explain why the department had failed to apologise.
“This was another shocking development. I requested the director-general to instruct the legal services division to terminate the mandate of Mr Mike Bofilatos SC with immediate effect.
“On 8 June 2023, I took an extraordinary step of addressing a letter to the Solicitor-General and State Attorney terminating the mandate of the State Attorney and I copied the President of the Republic of South Africa, director-general in the Office of the Presidency and minister of finance,” he said.
Motsoaledi said government officials had “a cavalier and contemptuous attitude towards court orders”.
“When I took the reins as minister of home affairs, I found this attitude prevalent in the DHA.”
Motsoaledi said he took steps on October 2020 to develop a “communications protocol” which deals with compliance with court orders and the consequences for the failure to comply.
“The deputy directors-general are required to ensure that court orders are complied with.”
Motsoaledi added that he was unaware that the department had launched an ex parte application at the Gauteng Division of the High Court and the ConCourt, failing to include LHR, which had brought the initial case to court.
Ex parte applications are meant to be used in rare circumstances when it would not be in the interests of justice for a party to become aware of a case beforehand, such as during asset forfeiture cases.
Motsoaledi said an internal investigation revealed that the former head of litigation, Mpho Seotlela, instructed the State Attorney to brief Bofilatos, who advised the department to take the ex parte approach in the high court before coming to the ConCourt.
“Even as a layperson in law, I know the LHR ought to have been cited as a party,” he said.
The internal probe also revealed that several senior officials met to discuss the case, including:
Modiri Matthews, chief director at Immigration Services;
Yusuf Simons, acting deputy director-general at Immigration Services;
Richard Stoltz, chief director in the support office of the deputy director-general; and
Moses Malakate, the director at Drafting.
Motsoaledi said there were “conflicting versions” about who took the decision to proceed with the application as Bofilatos advised, but none of the officials had the authority to take such a decision.
“Even though the director-general states that ‘I also lodge the applications on behalf of the first applicant [Motsoaledi]’, he did not consult with me or show me the affidavit.
“The failure by officials of legal services and the director-general is a clear violation of the strict standing instruction issues by me regarding all matters in which I am cited,” he said.
Motsoaledi added that “privileged communication” from his office was used in the application without his consent.
“I am still baffled as to how such privileged communication can be disclosed by anyone without my consent. Disciplinary measures will be taken against all officials responsible for this breach of trust and violating the standing orders and policies of the DHA.”
Motsoaledi said the affidavits submitted to court “leave much to be desired” as they did not adequately explain what the department had done to amend the legislation.
In 2017, the court ordered that sections 34 1(b) and (d) of the Immigration Act were invalid because they authorised the administrative detention of undocumented foreigners for the purposes of deportation. The detention period can be extended from 30 days to 90 days or a maximum of 120 days.
At the time, LHR had argued that, in many cases, people were being detained for more than 120 days — sometimes for six months or longer — without appearing in court or being informed of their rights in some cases. The ConCourt ordered the department to amend the act to deal with these defects, giving it a 24-month deadline, which ended in June 2019.
Read more in Daily Maverick: ConCourt demands answers from Motsoaledi, Home Affairs over three-year delay in immigration case
“The steps taken by me and the DHA to effect legislative amendments are not set out in great length. This has led to this court forming the wrong impression that the DHA and I have dismally failed to perform the constitutional and statutory duties upon us. In particular, they have shown this court a middle finger and disregarded the court order,” Motsoaledi said in his affidavit.
He added that the Immigration Amendment Bill was brought as a committee bill through Parliament, not as an executive bill via his department. He also listed the various meetings and issues raised in deliberations over the bill between May 2018 and February 2019.
While Motsoaledi agrees that work on the bill was stopped because of the 2019 elections, he vehemently disagrees with the other reasons provided to the court.
“The process in respect of this type of bill is driven by the portfolio committee. I, however, dismiss with the contempt they deserve the allegations contained in the affidavit filed by the director-general that failure to effect the required amendment was due to the outbreak of Covid-19, and fire that broke out in Parliament during February 2022. This is nothing but lame excuses. The two events never affected the functioning of Parliament,” he said.
Motsoaledi says he had instructed department officials to draft an executive bill since the committee bill had lapsed and was not saved correctly.
“I was not aware that the process was halted due to a spurious application launched in this court. Instead of the officials in the drafting section starting with the process of initiating an executive bill, they were on a frolic of their own.
“In the process, a period of more than a year is lost. In the circumstances, I am in agreement with the case as pleaded by LHR that the relief sought by the minister is incompetent. The court has no power to resuscitate and extend a suspension of invalidity once it has lapsed.”
Motsoaledi has argued that he should not be made to pay personal costs as the “applications were brought behind my back” and he would not have agreed to the legal counsel had he known what was going on.
“I humbly request this court not to join me in my personal capacity and not to be held liable for the costs of this application.”
Motsoaledi said his department would withdraw the existing case before the court and agreed to pay the legal fees for the matter. It is not clear whether the court will accept this suggestion, as the case has already been argued in open court.
Meanwhile, Director-General Makhode has filed a short affidavit, saying he agrees with Motsoaledi’s submissions.
“I wish to confirm the correctness of allegations contained in the minister’s [affidavit] relating to me. I accept now in hindsight that I ought to have applied my mind fully to the facts contained in both affidavits. I should have accepted that an application of that nature ought to have [been] sanctioned by the minister,” he said.
Makhode said he was “at all material times” aware of the ex parte applications but “accepted the advice from counsel that the ex parte route was appropriate”. Makhode also apologised to the Chief Justice, high court, ConCourt, Motsoaledi, minister of finance and LHR “for my actions and [those] of officials under my direct control and supervision”.
Despite these admissions, Makhode said the case for a personal costs order had not been met and he asked for the court’s pardon. DM