Lote and Others v Minister of Home Affairs, Republic of South Africa and Others

IN THE HIGH COURT OF SOUTH AFRICA, EASTERN CAPE DIVISION – GRAHAMSTOWN

CASE NO: 2290/2008; 2419/2008 2437/2008; 292/2009; 299/2009; 300/2009; 306/2009.

LINDIWE <> …………………………………………………………………………………………First Applicant

TUMA NOWELILE DABI ……………………………………………………………………….Second Applicant

LUNGILE ZENZILE …………………………………………………………………………………Third Applicant

NOBELUNGU MIRRIAM SAM ……………………………………………………………….Fourth Applicant

EMILY MAKELENI …………………………………………………………………………………..Fifth Applicant

JIM MGENI ……………………………………………………………………………………………….Sixth Applicant

SITHIWE LUMKO …………………………………………………………………………………Seventh Applicant

and

THE MINISTER OF HOME AFFAIRS,

REPUBLIC OF SOUTH AFRICA. ……………………………………………………………First Respondent

THE DIRECTOR GENERAL, DEPARTMENT

OF HOME AFFAIRS

REPUBLIC OF SOUTH AFRICA …………………………………………………………Second Respondent

THE REGIONAL DIRECTOR OF

DEPARTMENT OF HOME AFFAIRS

EAST LONDON ……………………………………………………………………………………..Third Respondent

______________________________________________________________________________

JUDGEMENT

______________________________________________________________________________

MAGEZA AJ

[1] This is an application for a review in terms of section 6 (2) (g) of the Promotion of Administrative Justice Act 3 of 2000 “PAJA” alternatively in terms of the common law or Rule 53 of this Court’s rules.

[2] The matters have, in accordance with the order of Plasket J dated 27 August 2009, been consolidated. The said order was at the time granted unopposed by the Applicants. In all of the 7 cases before me, the Applicants are clearly relatively poor and indigent persons who struggle to raise even the small taxi fare required for them to travel from outlying areas where they are resident, to the town centered offices of the Third Respondent (Regional Home Affairs office) in East London, with whom the applications herein were lodged. Common between them is the fact that they have, in terms of Chapter 2 of the Identification Act No. 68 of 1997, all applied for the amendment of their Identity Documents to reflect what, in their applications, they assert are their correct dates of birth.

[3] In their papers, the Applicants set out a background alluding to certain steps each of them took in the quest to achieve the rectification sought. They each filed an application with the Department at the East London office; paid an amount by way of a fee; submitted certain documentation consisting either in a baptismal certificate or affidavits; photographs and copies of thumb prints, and have all been furnished with a pro forma acknowledgement of receipt setting out some information pertinent to their applications. In each case, they were told to return after 3 months to collect the amended identity document. All these applications were submitted between 2003 and 2005. They are represented in these proceedings by the same firm of attorneys.

[4] Since 2003, they have despite much expectation and constant visits to Third Respondents offices, been unable to get any information and any confirmation pertaining to how their applications are progressing. The visits have been frustrating and have yielded no benefit. They have on each such visit been requested by Third Respondent’s representatives, to return at least once every month to monitor progress. This position has persisted until the bringing of these Application proceedings. On the 1st October 2008, their legal representatives wrote a letter of demand calling upon the Respondents to consider and decide their applications.

[5] They now require that the Court compels the Respondents to consider and decide their applications within 30 days of such order in terms of section of 8 (1) (a) (ii) of PAJA.

THE APPLICANTS

[6] The applications were made and submitted by each of the Applicants on the following dates:

First Applicant, Lindiwe <>. – 15 October 2003 resulting in a lapse of 7 years;

Second Applicant, Nowelile Dabi – 23 October 2003, lapse of 7 years;

Third Applicant, Lungile Zenzile – 4 August 2005, lapse of 5 years;

Fourth Applicant, Nobelungu Sam – 1 April 2005, lapse of about 5 years;

Fifth Applicant, Emily Makeleni – 11 May 2004, lapse of 6 years;

Sixth Applicant, Jim Mngeni – 14 June 2005, lapse of 5 years;

Seventh Applicant, Sithiwe Lumko – 5 December 2005, lapse of 5 years.

[7] For purposes of the relief sought herein, Applicants details in their respective applications for the amended identity documents are similarly structured and detail differs in regard to the above dates on which they lodged their respective applications with Third Respondent as well as the following different:

Dates of birth;

Dates to which dates be amended to;

Dates when identity documents were first issued to each;

Dates on which they each visited the offices of Third Respondents to make the necessary follow up enquiries.

It is not necessary to set out the balance of the contents in any substantive detail.

RESPONDENTS REPLY

[8] Respondents are represented by one Xholile Wittes who confirms that he is employed in the

Second Respondents legal department and is directly responsible for the processing

of applications of this nature and in particular those of the Applicants. He makes several points,

some of which relate to the style in which the papers are drafted, the repetition and use of

generic templates –precedents – and so forth. Its argument is that the allegations contained in the

Notices of Motion as well as in the founding and confirmatory affidavits are identical save for

the names and dates of birth; dates to which the Applicants want their dates of birth amended to;

dates when their respective identity books were issued; dates when they applied for their dates of

birth to be amended and the dates when they visited the Department’s district office at East

London.

[9] Mr Wittes casts doubt, without more, on whether the founding and confirmatory affidavits were properly commissioned; the absence of page numbering; the absence of initials of the respective deponents and the commissioner of oaths and the fact that there exists a large gap between the last paragraph and the respective Applicant’s signature or thumbprint make it possible for the commissioner of oaths to have seen only the first and last page of the affidavit.

[10] He questions why the Applicants who live at the Kwelera Administrative Area, Mooiplaas Administrative Area, Berlin, Cambridge, Ncera Administrative Area and Duncan Village had their affidavits commissioned at the East London police station within the CBD of East London.

He says that applications for the correction of the particulars of a person to whom an identity document has been issued, more particularly the amendment of such person’s date of birth, is a time consuming exercise.

[11] Finally, that in light of this that the amended dates of birth would entitle Applicants to social grants, it is important for the Department, which has been the target of fraud from some departmental officials and persons outside the Department, to properly and carefully examine a claim for the amendment of a person’s date of birth. That for that reason it is important for the Department to be furnished with credible documentary evidence for the Second Respondent to amend a person’s date of birth.

[12] Reverting to the relief sought, Applicants aver that since the application was made, the Respondents have not communicated in any manner or form with the Applicants. That all that the Applicants ask for is that Respondent must consider and decide. Applicants say they have submitted all relevant and required documentation and have paid a stipulated application fee. Simply put, the Applicants require the Respondents to apply their minds to their applications and to take a view and convey such to them. Any communication indicative of Respondents attention and consideration of the applications will for present purposes suffice. This does not per se need be an approval, even a refusal communicated would enable the Applicants to evaluate its options as to how to proceed from thereon.

[13] Section 237 of the Constitution requires that all Constitutional obligations must be performed diligently and without delay.

[14] In Noupoort Christian Care Centre v Minister, National Department of Social Development 2005 (1) BCLR 1034 (T) at paragraph 28 the Court held that:

“The approach to be followed in matters where the exercise of public power is challenged by way of review proceedings has been encapsulated in various decisions by the Constitutional Court. For present purposes I only refer to the judgement in Pharmaceutical Manufacturers Association of South Africa & <> [2000] ZACC 1; 2000 (2) SA 674 (CC) at 696 E-H (paragraph 45):

The interim Constitution which came into force in April 1994 was a legal watershed. It shifted constitutionalism, and with it all aspects of public law, from the realm of common law to the prescripts of a written Constitution which is the supreme law. That is not to say that the principles of common law have ceased to be material to the development of public law. These well established principles will continue to inform the content of administrative law and <> aspects of public law, and will contribute to their future development. But there is a fundamental change. Courts no longer have to claim space and push boundaries to find means of controlling public power. That control is vested to them under the Constitution, which defines the role of the Courts, their powers in relation to <> arms of Government and the constraints subject to which public power has to be exercised. Whereas previously Constitutional law formed part of and was developed consistently with the common law, the roles have been reversed.”

[15] In Armbruster & Another v Minister of Finance and <> [2007] ZACC 17; 2007 (12) BCLR 1283 (CC) at page 1309 paragraph 81, the Constitutional Court per Mokgoro J stated:-

“Finally, though nothing untoward in the conduct of the official in this case has been established, it is necessary to underline the fact that officials are Constitutionally bound, in their daily operation of their roles and functions, to observe the rule of law and promote the spirit, purport and objects of the Bill of Rights. The public administration must always and in every sphere be governed by the democratic values and principles enshrined in the Constitution and services thebe provided impartially, fairly, equitably and without bias.” (Section 195 of the Constitution).

[16] More to the point in the present matter, the Applicants complain about the tardy and neglectful manner which the Respondents have approached their applications. I have already outlined heretofore the complete failure of the Respondents to not so much as even acknowledge whether or not the applications are being considered. This division has for at least the last decade, been at the forefront in efforts to assist indigents find appropriate solutions to the neglect exhibited by public officials in dealing with social grants.

[17] In Vumazonke v MEC For Social Development, Eastern Cape 2005 (6) SA 229 (SECLD) at paragraph 35, Plasket J, after analyzing several judgements of this very Court lamenting the parlous attitude of officials of the department, commented as follows:-

“Public Powers and functions – such as the power to decide on an entitlement to social assistance- are given to administrative officials for a purpose: they are intended to be exercised in the furtherance of the public interest. As a result, when officials fail to exercise their powers or perform their functions, affected parties may require defaulting officials to perform their duties. If the power or function is discretionary in nature, as in this case, an order may be issued to compel the administrative official to take a decision, although it usually will not be competent to compel the official to decide in a particular way.”

[18] I have already referred to the suggestions of possible fraud obliquely stated by deponent in the Respondents Answer. Mr Bloem for the Respondents argued that all the applications are tainted by fraud and he referred the Court to the decision in Sibiya v Director General: Home Affairs and <>, and 55 Related cases 200 (5) SA 145 (D&CLD), urging that the present matter be similarly dealt with by this Court. That this Court should similarly not only deny Applicants the relief sought, but should refer all these matters to the Prosecuting Authorities for them to be investigated for possible fraud. Furthermore that the Court cannot make an order compelling the Respondent to decide as there is incomplete information in the applications, that is, outside of the mooted fraud.

[19] I am not able to agree with the contention that Applicants are not entitled to the relief sought. In so far as the suggestion of fraud, I find that the imputations are so generalized and tenous that it is difficult to conclude as to who the Respondents seek to accuse of fraud in the matter before me.

The decision of Wallis J in the Sibiya matter does not stand on the same footing as the one in casu. For a start, that decision dealt with new applications for identity documents, not a rectification to an identity document already lawfully acquired; the applicants in Sibiya’s case had first approached an outside unregistered non-government agency which had sought to process these applications representing the purported applicants; the agency wrote letters of demand whereupon they would, where no compliance was elicited from the Department, refer the matters to the relevant attorney; there appeared to be a touting relationship between the attorney and the agency; there was some special and non-transparent fee relationship between the attorney and the agency; in that case the papers were so badly drafted and churned off a word processor and this suggested that the attorneys only concern was with their own remuneration; the bills of cost were a standard R4000 to R5000 ; there appeared to be overreaching constituting unprofessional conduct on the part of the attorney; that the relationship between attorney and the agent, as possible tout, was troubling and merited referral to the Law Society.

[20] I am satisfied that there is no touting in the current matter and the decision of Wallis J has no bearing on the one before me. Unlike the decision in Sibiya, the Applicants in the present matter have availed the Department information on which the Respondents could in fact take a view one way or the <>. The Applicants do not demand that the applications be approved.All that Respondent need do is communicate any concerns it has on the applications before it and it simply needs to advise the Applicants what those concerns were. The department has the requisite resources to undertake any investigation it needs to do to satisfy itself with the veracity of the information at its disposal in respect of each such application. No amount of persuasion can convince this Court that the Respondents have not had enough time to assess, consider and decide these applications or to formally request any information required from the Applicants or their legal representatives.

[21] When one takes account of the Respondents principal argument that it does not have enough information at its disposal to be able to consider the applications, the contents of its own answering papers seem to suggest a contradiction. In answer to the Applicant’s assertion that a letter of demand had been sent to Respondents, Mr Wittes says at paragraph 26;

“I can give this Court the assurance that, had I received letters of demand prior to

the commencement of litigation in these applications, I would have investigated or

caused the Applicants’ claims to be investigated and as soon as possible after such

investigation inform the Applicants what such investigation had revealed. If the

Second Respondent required outstanding information to be able to make a decision

in respect of an application, I would have informed them thereof and requested

them to furnish the Department with such outstanding information. The above

arrangement works excellently with attorneys.”

In my mind, this puts paid to the assertion that Respondents are unable to consider and

decide the applications for the lack of information alluded to.

The following order is made:

The Respondents are hereby ordered to consider and decide the applications of the Applicants for the issuing of amended South African identity documents, within 90 days from the date of this order.

That, in the event of the applications having been considered and refused, the Respondents are hereby ordered to furnish the Applicants with such decision and adequate written reasons in support thereof, within 30 days of the said decision having been taken.

That, in the event the applications having been considered and granted, the Respondents are ordered to issue such Applicants with amended identity documents within 30 days of the granting of such applications.

Respondents are ordered to pay the costs herein, jointly and severally, the one paying the <> to be absolved. These are inclusive of the 11 and 12 November 2010.

_________________________

MAGEZA AJ

10 DECEMBER 2010

APPLICANTS ATTORNEYS MANCOTYWA, NDZABELA INC

c/o NETTLETONS ATTORNEYS

COUNSEL FOR APPLICANTS ADVOCATE S COLE

FIRST, SECOND & THIRD

RESPONDENTS ATTORNEYS STATE ATTORNEY

COUNSEL FOR RESPONDENTS ADVOCATE G BLOEM SC