Schreiber has not been shy of adopting a proactive approach filled with strategic innovation proposals towards the implementation of change within the Department he heads. Nonetheless, the DHA remains systematically wanting of the necessary competency to perform its duties.
[Below some extracts– the full opinion can be found as published on the Daily Maverick]
Just administrative action and maladministration
Since the coming into effect of the South African Constitution, followed by the Promotion of Administrative Justice Act (PAJA), the world of public administrators and of their administrative actions have been redefined and reshaped within constitutionally and legislatively prescribed boundaries. Yet, to date, public administrators within the DHA continue to make themselves guilty of maladministration. Too often DHA Officers and Adjudicators, are either ill-informed or indifferent to the legislative and judicial rules that prescribe their administrative conduct and decision making.
Lawfulness and procedural and substantive fairness are the three cardinal pillars that sustain just administrative action. Not only absence of bias is vital from a procedural fairness standpoint; but paramount to the principle of lawfulness is that “any public administrator must be properly qualified for a specific administrative function in order to make decisions”.
Bias, mistrust and inadequate reasons
Bias extends to the culture of mistrust which permeates the decision-making of the DHA on visa and permit applications, which places an imbalanced burden of proof on applicants. Applicants are lambasted with rejection notices generically stating their failure to submit “adequate proof”, or are rejected on the basis of the DHA’s inability to verify documents or relationships.
Most rejection notices fail to include adequate reasons as prescribed in terms of sections 5(1) and 5(2) of PAJA, frequently leading to unnecessary litigation as – even when placed on demand notice for adequate reasons – the DHA fails to comply with its mandate within the prescriptions of just administrative action.
The murky verification process
Financial and other documents included in applications frequently fail to satisfy the DHA’s adjudicators, to such an extent that there appears to be a parallel murky verification process which has no basis in law or statute.
The DHA’s own inability to process applications within a reasonable time, as also prescribed by PAJA, seems to have derailed and hijacked the adjudication process through a self-assumed and self-empowered verification process that is cryptic and prima facie unlawful.
By Claudia Pizzocri | CEO at Eisenberg & Associates