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High Court rules Cape Town Home Affairs ‘screeners’ who reject applications are acting unlawfully

Source: Samigration, 11/03/2025




`The Western Cape High Court ruled on Thursday that ‘screeners` at the Cape Town Home Affairs offices cannot refuse to accept the public`s application forms that they believe are defective. The Western Cape High Court has ruled that screeners at Home Affairs offices who turn people away and refuse to take applications that they deem to be defective are acting unlawfully and outside the scope of their jobs.The case before court was brought by De Saude Sadat Darbandi Immigration Attorneys and a number of their clients who were turned away from Home Affairs offices.The applicants challenged a practice by the Department of Home Affairs to screen and then bar access to people who wish to file applications in terms of the Citizenship Act and/or Births and Deaths Registration Act.The focus of the case was specifically on Cape Town Home Affairs, but in her ruling, Judge Constance Nziweni said the general question was whether the department`s screeners could turn people away if they believed their application was defective.Aggrieved members of the public, the lawyers and the Home Affairs officials all agreed that people are frequently turned away. The legal argument on behalf of the aggrieved members of the public was that Home Affairs screeners are not legally authorised to make any decisions on these applications.``The application is strenuously opposed by [Home Affairs]. The department refers to the process as a ‘screening` of applications prior to their acceptance, capturing and dispatching to the Pretoria hub. The department maintains that the screeners in Cape Town perform a bureaucratic or administrative function of screening applications in terms of checklists,`` Nziweni said.According to papers before court, attorneys from De Saude Sadat Darbandi alleged that each and every time it takes clients to file applications at the Cape Town office, officials at that office have irregularly and arbitrarily refused to accept the applications.This is not done in writing and only informal reasons are offered, which are “difficult to comprehend``. They further argued that the screeners` job is to give advice on how to remedy a defective application. Arbitrarily turned awayOne of the applicants who was turned away was trying to do a late registration of her birth, but she was told only people with South African parents could apply. A man who held dual citizenship in Namibia and South Africa was turned away with claims that he was an illegal foreigner.Another man was turned away for not providing additional verification of his permanent residence permit. This is in spite of the fact that a copy of his permit was included in his application, and an original verification of the permit obtained from the department.Another person was turned away when an official stated she needed fingerprint clearance from the South African Police Service for her application, even though the law does not stipulate this. Two others were turned away after officials claimed that their parents wrongfully and fraudulently obtained permanent residence and/or citizenship. They were informed that they were illegal foreigners and were refused help.Another applicant was turned away when officials claimed she needed to bring a DNA test proving that her father is South African and a form signed by her father. Yet another was prohibited from submitting his citizenship application when an official told him that an investigation against him was under way, which rendered his application ineligible. It was alleged that he was not given the details of the investigation. It is also alleged that to this day, he has not been able to apply for citizenship.Home Affairs defends practiceAccording to the department`s court papers, the screeners are fully fledged Home Affairs officials who can perform these duties and also do walkabouts to ask if anybody needs help.According to Home Affairs, the existence of gatekeeping in Western Cape is necessary and a “rational practice that is intended to conserve time and resources for both the department and the public``. Home Affairs also argues that it is legal for screeners to ensure applicants comply with checklists.The Home Affairs legal team said screeners play an important role in preventing officials in Pretoria from becoming overwhelmed with incomplete forms.“If the public is allowed to abuse the system by insisting that their non-compliant applications be taken in, that would result in undesirable outcomes for both the public and the department.``Nziweni unpacked the justification for Home Affairs` use of screeners at its offices.“The department is an administrative authority that is responsible for a number of governmental and public functions. Conversely, the Constitution vests a responsibility to the courts to protect rights that are enshrined in our Constitution and to scrutinise government policies and procedures to ensure that they are predicated on constitutional values.`` She said it was undeniable that the department receives an overwhelming number of applications. “The screeners mitigate the burden by limiting the number of applications that may be presented to the Pretoria hub. The screeners are necessary and perform a valuable, sensitive and extremely important service to the department and members of the public. Screening is intended to enhance the quality of services and increase efficiency, among other objectives.“Due to the early elimination involved in the screening process, significant time and costs are saved and not expended on a defective application. This does not imply, however, that the screening process should be a mechanism that creates a barrier to the accessibility of the public services system,`` she said.“The aim of the screening process is to verify whether an application satisfies all the checklist requirements prior to its submission to the Pretoria hub. Similarly, it entails making sure that members of the public have access to the services offered by the department`s Pretoria hub. Thus, it is imperative that the screening should be administered by skilled officials.“In the context of this case, the screeners are intended to act as an intermediary between an applicant and the Pretoria hub to prevent and curtail unnecessary delays. Accordingly, this necessitates a process of screening through numerous applications.“In doing so, the officials are, in effect, the principal screeners determining what applications should or should not advance. Therefore, as mentioned previously, they wield considerable authority, insofar as it pertains to the determination whether or not applications of persons would be accepted, processed and reach their intended destination [Pretoria hub] for a decision.``Unlawful screeningNziweni said it was of great concern that the screeners in Cape Town did not merely offer advice but took decisions to refuse applications.She pointed out that Home Affairs did not deny that its screeners were refusing to take forms from members of the public as they believed them to be non-compliant. Nziweni ruled that while the screening process might help with the early identification of defective applications, the screeners do not have the final word as to whether an application should be accepted for submission to the Pretoria hub. She pointed out that affidavits before court demonstrated that the screeners in Cape Town lacked certain levels of expertise to make decisions.She added that there is no legal explanation of whether a screener can refuse to take an application if it doesn`t comply with their checklists.“Refusal to accept an application would be unfair and violate the rules of natural justice as it does not provide an applicant with an opportunity to respond to the screening officer`s concerns.“Thus, it is pertinent to note that the screening officials have no discretion with respect to accepting or refusing the applications. Moreover, the negative effect of the refusal to dispatch the application to the Pretoria hub, is that the screening official does not owe the applicants any procedural fairness,`` Nziweni said.“The practical and functional advantages of having a screening body cannot be understated. Notwithstanding that, the officials cannot usurp the power that they do not have,`` she added.Nziweni suggested that when a screener finds an application to be defective but the member of the public disagrees, the application should be dispatched to the Pretoria hub, to a specific point that handles applications that are primarily viewed as being non-complainant.She made an order that officials` refusal to accept applications they deemed to be defective is unlawful.`


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