The Supreme Court of Appeal found it difficult to accept that a visa application for an international figure could take months to be processed.
"How many months can people expect to wait?" asked Appeal Court Judge Robert Nugent of department of home affairs' lawyer Marumo Moerane SC during an argument on "unreasonable delay".
The SCA was hearing an appeal application by the IFP and Cope on whether it was unconstitutional and unlawful for home affairs to turn down a visa application for the Dalai Lama last year.
"The only reasonable conclusion could be that they did not want to do anything," said Judge Malcolm Wallis, asking if it was considered against the background of international importance and the sensitivity of the case.
"No, with respect, that could not be it," answered Moerane.
He submitted the department did not deliberately obstruct the visa application.
Earlier, the Western Cape High Court dismissed with costs the application on whether it was constitutional for the government not to grant a visa to the Dalai Lama. The Tibetan spiritual leader cancelled a trip to South Africa to attend Tutu's 80th birthday on October 4. Tutu was outraged and said the current government was worse than the apartheid-era one.
At the time, the high court found the issue was moot because the Dalai Lama, after getting no response to his visa application, cancelled his trip.
Moerane submitted that if the Dalai Lama had not withdrew his application it might have been approved. The withdrawal made it impossible for the department to make a decision.
SCA asks for facts
Moerane also found it difficult to explain why the then minister of home affairs, Nkosazana Dlamini-Zuma, made no time reference in her answers to court when she was challenged on a time aspect.
"She was challenged in the realm of international politics and she said nothing of time … why it took so long," the bench said.
Moerane said the minister was waiting on other departments, such as foreign affairs, to answer the visa application.
The SCA agreed, but urged Moerane to show it facts that supported the minister's statement under oath.
Moerane replied there was no reason to doubt the minister's version.
Earlier legal counsel for the Inkatha Freedom Party (IFP), Anton Katz submitted the case could not be moot, because it would give the government a licence to act unlawfully in future. He said it was in the interests of justice that the case still be considered.
"The court must say something on how the department has done its work."
Katz submitted that the department's argument that no real decision had been made did not hold in this case.
He submitted the "refusal" to grant the visa was unlawful and wanted the court to make a declaration on the "failure of process".
Counsel for Cope, Max du Plessis, also submitted to court that the visa application process did not meet the test supported by the Constitution.
He said the government's conduct in the case was unreasonable.
The case continues. – Sapa