Motsoaledi faces being held in contempt after ignoring court order

Source: News24, 30/12/2023

• Home Affairs Minister Aaron Motsoaledi faces being held in contempt of court after failing to comply with a court order.
• In October, the court ordered Motsoaledi to decide on a foreign national`s declaration of non-prohibition.
• In 2023, Motsoaledi often found himself on the wrong side of court rulings and watched more than one deadline pass by without the required action from his side.
Home Affairs Minister Aaron Motsoaledi yet again failed to comply with a court order, and will be held in contempt if he misses a new deadline set by the court.

The matter has its genesis in 2016, when the applicant, identified only as TC in the judgment, obtained a work permit through a third party in South Africa.
`In 2020, he became aware that his purported work permit was, in fact, fraudulent and that that third party defrauded him. Pursuant thereto, the applicant approached the Department of Home Affairs in good faith to have the situation rectified,` reads Western Cape High Court Judge James Lekhuleni`s judgment.
`The applicant voluntarily submitted the impugned visa to the Department of Home Affairs, seeking a lawful resolution of the matter.`

However, the Immigration Act prohibited the applicant from qualifying for a visa or admission into the country because of having a fraudulent work permit.

The applicant then approached the home affairs director-general for a declaration of non-prohibition in terms of Section 29(2) of the Immigration Act.
The director-general rejected the application on 12 April 2021, and on 17 August 2022, the applicant brought a review application to the minister.
`In the review application before the minister, the applicant contended that a declaration of non-prohibition must be based on the director-general`s finding of good cause but that there was no apparent effort by the director-general to do so. The applicant asserted that the director-general did not comply with the mandatory and material procedure prescribed by Section 29(2) of the Immigration Act. In addition, the applicant contended that an error of law influenced the rejection of his application,` stated Lekhuleni.
`The minister failed to adjudicate the applicant’s review application timeously. One year lapsed from the date the applicant submitted his Section 8(6) review application and has yet to receive a response from the minister.`
The applicant then on 14 September 2023 brought an application to the Western Cape High Court in which he sought an order reviewing Motsoaledi’s `failure to decide within a reasonable time his review application` and an order directing Motsoaledi to adjudicate his review application and make the outcome available within 30 calendar days of granting the order.

When the matter was heard on 20 October 2023, the parties agreed that Motsoaledi`s failure to adjudicate on the applicant`s review application be reviewed and that he would adjudicate the applicant`s review application and make the necessary outcome available within 40 calendar days of granting the order.
`The parties` agreement was made an order of court in terms of a draft order,` stated Lekhuleni.
`Ordinarily, in terms of the draft order, the minister should have made his decision on or before 30 November 2023, which is 40 days after the order of 20 October 2023.
`Notwithstanding, the minister failed to adjudicate the applicant`s review application in terms of Section 8(6) of the act. The applicant avers that despite multiple correspondences with the minister`s officials, the minister failed to respond accordingly.`
The applicant asked the court for an order directing Motsoaledi to comply with the 20 October court order within seven days, failing which he would be entitled to approach the court with the same papers to declare Motsoaledi in contempt of court and directed to appear before the court to explain his non-compliance and contempt.
Lekhuleni’s ruling reads: `It is common cause that this court made an order by agreement on 20 October 2023 that the minister must decide on the review application of the applicant in terms of 7 Section 8(6) of the Immigration Act within 40 calendar days from the date of the court order. It is also common cause that, to date, that order has not been complied with. The minister still needs to decide on the applicant`s review application. Thus, the minister is in breach of the court order granted on 20 October 2023.
The ruling further added:
It is irrefutable that the applicant is prejudiced by the delay in that his status and that of his family in South Africa remains in limbo. The bureaucratic inefficiency within the Department of Home Affairs violates his family`s rights to dignity and the right to live together without the daily fear and threat of his possible deportation.
`Crucially, accountability, responsiveness and openness on State organs are the fundamental cornerstones of our Constitution. The failure of the minister to comply with this court`s order is a serious infringement on the integrity and the honour of this court. It also seriously infringes on the applicant`s constitutional right to just, procedurally fair, and lawful administrative action envisaged in Section 33 of the Constitution, read with Section 3 of the Promotion of Administrative Justice Act 3 of 2000.`
Lekhuleni further stated that on the evidence before him, `there can be no doubt that the minister is in contempt of court`.
He said the 20 October order was served on Motsoaledi’s attorneys and his office by the sheriff.
`In my view, the inevitable conclusion in the circumstances is that the minister was aware of the order and knew exactly what it required of him,` said Lekhuleni.
`The minister bore an evidentiary burden to refute the allegation of contempt. The minister did not file any answering affidavit. In the final analysis, I am of the view that the applicant has succeeded in establishing that the minister failed to comply with the court order dated 20 October 2023.`
Lekhuleni ordered that Motsoaledi had to comply with the 20 October court order within 10 days of his ruling, which was handed down on 22 December.
The judge further stated:
Should the first respondent fail to comply with this second order directing his compliance, then the applicant shall be entitled to approach this court on the same papers supplemented if necessary for an order declaring the first respondent to be in contempt of court and to appear before the court to explain his non-compliance or any further relief required.
Motsoaledi`s legal woes
This wasn`t the first court ruling against Motsoaledi in 2023. Nor was it the only time that he ignored a deadline.
In June, a full Bench of the Gauteng High Court in Pretoria ruled that Motsoaledi`s decision to terminate the Zimbabwean Exemption Permit (ZEP), which would affect more than 178 000 people living in South Africa, has been declared invalid, unlawful and unconstitutional.
This followed an application that the Helen Suzman Foundation and the Consortium for Refugees and Migrants in South Africa brought in April, challenging Motsoaledi`s December 2021 decision not to renew the ZEP.
The decision not to renew the ZEP meant that permit holders, who either did not apply for an exemption or were not granted an exemption, would have to return to Zimbabwe after calling South Africa home for more than a decade.
Applying to the court for leave to appeal its ruling, Motsoaledi argued that the court had no right to `interfere` with his work.
Leave for appeal was not granted, and Motsoaledi has since approached the Supreme Court of Appeal for direct access.
On 1 December, Motsoaledi announced that the exemption permits granted to Basotho and Zimbabwe nationals living in South Africa would be extended for a further two years.
On the same day, he presented a list of candidates for an electoral reform panel to the Portfolio Committee on Home Affairs, more than a month after the legislated deadline.
After an arduous and contentious path through Parliament, President Cyril Ramaphosa signed the Electoral Amendment Bill in April and subsequently issued a proclamation that the act was in operation on 22 June.
In terms of Section 23 of the act â€` a provision that was proposed by Motsoaledi when the National Council of Provinces started working on the-then bill in November last year â€` Motsoaledi had to appoint the panel within four months, in other words, by 22 October.
This deadline came and went, and nary a word from Motsoaledi. The committee was unhappy with the composition of the candidates for the panel and postponed its establishment to 2024.
In October, the Constitutional Court gave a scathing ruling against Motsoaledi, and his director-general, Livhuwani Makhode, for failing to amend sections of the Immigration Act, six years after a court ordered it.
Motsoaledi and Makhode have been slapped with personal cost orders. In 2017, the apex court declared sections of the Immigration Act invalid and unconstitutional and gave Parliament 24 months to remedy it.
While MPs initially introduced a committee bill, this was withdrawn as the department was also working on a bill.
This wasn`t the first time Motsoaledi fell foul of the Constitutional Court, which twice had to grant Parliament deadline extensions to amend the Electoral Act to allow independent candidates to participate in national and provincial elections.
Parliament deferred to the department to draft the bill, and Motsoaledi introduced the complex bill, which also proved to be one of the Sixth Parliament`s most contentious pieces of legislation, six months before the initial deadline expired.
Motsoaledi is in line to find himself in this position once again.
On 28 June 2022, the Constitutional Court ordered an amendment to the Marriages Act. The deadline is 27 June next year.
Parliamentary legal advisor, advocate Charmaine van der Merwe, told the National Assembly Programming Committee at a meeting in November that the department informed Parliament that it would introduce the bill in April 2024.
She said:
Even if 2024 was not an election year, two months is not sufficient for Parliament to consider a bill.
Despite first briefing the Portfolio Committee on Home Affairs on consequential legislative amendments required by the Electoral Amendment Act in May, Motsoaledi only introduced the Electoral Matters Amendment Bill to Parliament in early December. It is essential that the legislation is in place before the 2024 elections. Parliament will follow a truncated process to pass the bill by 28 February.
Despite being a self-admitted legal layperson, Motsoaledi `interpreted` legislation, so that the Bulembu Airport could be designated a temporary entry point into South Africa, in time for the visit of the Emirati president, Sheikh Mohamed bin Zayed al Nahyan, and his 680-strong entourage in April.
When the DA, in a Parliamentary debate, questioned the legality of this, Motsoaledi mockingly dared them to `drag` him to court.