I am an immigration lawyer at the coalface of bureaucratic wrath. The dignity of my profession, of my representation of clients and as an officer of the courts, is too frequently disabused by Home Affairs officials. In fact the statutory recognition of my ability to make such representations in terms of the Immigration Act was repealed by its latest amendments in May 2014.
Consular staff posted at foreign missions in Berlin, Manila, Moscow, London and The Hague too often express an open antagonism against legal representation, statutory compliance and for those values governing the public service enshrined in section 195 of our Constitution, including the duty of accountability and service delivery. The repeal of section 46 of the Act was no doubt a consequence of a growing culture of disdain for the legal profession which has routinely challenged Home Affairs in our courts.
This phenomenon stems from the period 2009-2012 when current African Union Chairperson Dr Nkosazana Dlamini Zuma was Minister of Home Affairs. She seemed to provoke a malignant opposition for the law in the bureaucratic mind set. She appeared to encourage the hiring of cadres and security personnel, without immigration or legal experience, into managerial positions responsible for policy formulation and implementation.
This patent lack of expertise we see reflected in the dysfunctional immigration regime we are now contending with.
My personal experiences of this change were first reflected in a judgment of the Pretoria High Court about a Chinese citizen who was unlawfully refused entry at OR Tambo International Airport in November 2009.
During the case, the head of South Africa’s immigration system Deputy DG Jacky Mackay told the judge that he knew more about the law than he did and hang up on him. The judge decided not to jail Mackay for contempt of his order because Mackay apologised to him for his behaviour. It is disquieting that we continue to observe adverse decisions on immigration applications from Mackay that are bewilderingly unlawful in their substance and frequently absurd in their intelligibility, unbridled in volume. It has been impossible to stem this tide, despite our efforts to do so.
When the Dalai Lama applied for a visa at the SA High Commission in India in Oct 2011, every effort was made by Dlamini Zuma to frustrate a decision on the visa application. The Minister had a statutory duty to determine a visa application within a reasonable period of time. The Court of Appeals concluded “that the matter was deliberately delayed so as to avoid a decision. It hardly needs saying that the Minister is not entitled to deliberately procrastinate.” The court found that the Minister’s delay was unlawful, motivated purely by surreptitious political considerations. Unfortunately, only in important cases does the public get to know about these instances of delinquency, when in fact constraining government officials against abuse of power is a daily hardship for courts and attorneys.
Even important empirical studies of government behaviour, such as the Ibrahim Index of African Governance, fail to measure the extent to which the South African government complies with court orders. David Hausman, a doctoral candidate at Stanford University, examined the degree to which the South African government complied with Constitutional Court orders during the period 2005-2011. He found that government complied fully with only half of those orders and because of its inertia, incapacity or purposeful intent did not comply with the balance. He concludes that “given the lack of principled disagreement and public noncompliance as it actually occurs does little to further the democratic values that motivate the opponents of judicial review.”
When government begins to ignore court orders and legal imperatives with impunity, especially with the complicity of increasingly tolerant judges, then our political model of governance based on the centrality of the Constitution and the separation of powers transforms into a dictatorship. Implicit in government compliance with court orders and statutory law is the personal respect for the rule of law as a foundational value of our society by individual public officers. The tension building up between state officials and the judiciary, and the legal profession, is unhealthy and must be abated.
On the 14th June 2015, the Pretoria High Court issued an interim order directing government to ensure that Sudanese president Omar Hassan Ahmed Al Bashir be arrested, detained and be prevented from departing South Africa. Two arrest warrants were issued by the International Criminal Court against Al Bashir for war crimes. South Africa became a member of the ICC in July 2002. Much scholarly analysis ensued on the question of South Africa’s international obligations under the Rome Statute, and the immunity that the President had granted Al Bashir when visiting South Africa to attend the African summit in Johannesburg.
The colossus in this saga was the Cabinet’s collusion in purposefully refusing to comply with the interim court order. The respondents in that case included all executive functionaries in government (including Ministers of cabinet, police authorities and the minister and DG of Home Affairs). The interim order was handed down on the Sunday morning while Al Bashir was physically in Gauteng. The return date was the following morning at 11h30.
On 15 June a full bench of the Pretoria High Court concluded that government’s contempt of the interim order was inexcusable, and that the court was moved to state that a “democratic state based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders.
A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, and organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues”. The Court found it necessary to invite the National Directorate of Public Prosecutions (NDPP) to determine whether criminal proceedings are appropriate. To date NDPP has not decided to prosecute those responsible for the contempt.
The chronology of events which ensued in the process resulting in the judgement appears to suggest that the court itself was complicit in entertaining the tardiness of the state to file its pleadings. The interim order directed the respondents to file their answering affidavit by 09h00 on 15 June, but they did so more than 2 hours later without any explanation. No application for condonation by the respondents was sought by the Court. It was those few hours of purposeful delay that ensured Al Bashir’s departure before the final Judgment was handed down.
The Al Bashir case is a single illustration of a dangerous trend. If the executive and the public service continue to emasculate the judiciary, and the legal profession, of its role in our democracy, then we are heading for an irreversible calamity. It is ironic that we are now re-visiting what CODESA feared most in negotiating the end of apartheid in 1991 – that a government would one day return unconstrained in its exercise of power.
by Gary S Eisenberg
This opinion piece was also published on the Mail & Guardian on 30.10.2015