A high court application on whether it was constitutional for the government to bar the Dalai Lama entry into South Africa looked to be “dead in the water”.
Western Cape High Court Judge Denis Davis on Tuesday said it appeared as though the application by the Inkatha Freedom Party and the Congress of the People was not a “live” issue, as the Dalai Lama had withdrawn his visa application and had not applied for another.
“You don’t get out of the starting blocks until you tell us why this particular case is not dead in the water,” Davis told Anton Katz, who is arguing for the applicants.
“We can’t get to merits until you can convince me there is a live issue. The man withdrew his visa, whether right or wrong there was not a decision.”
The Dalai Lama cancelled his intended trip to South Africa to attend Archbishop Emeritus Desmond Tutu’s 80th birthday on October 4.
He said he had done so to avoid inconveniencing the South African government. The government’s failure to grant the visa sparked a public outcry. Tutu accused President Jacob Zuma’s administration of being “worse than the apartheid government”.
The IFP and Cope subsequently filed an application in the Cape High Court for an order declaring Home Affairs Minister Nkosazana Dlamini-Zuma’s handling of the matter unlawful and forcing her to treat future applications by the Dalai Lama fairly.
Davis, however, said there would only be a live issue when the Dalai Lama put in an application.
“When I last looked this court and the courts of this country don’t issue visas,” the judge said.
“At the best for you we can say you have to consider it and they can turn it down.”
Katz said the way the government acted in terms of the Dalai Lama’s visa application was unlawful and unconstitutional.
He said it would be foolhardy for the Dalai Lama to accept any future invitations to South Africa, considering how his previous applications had been treated.
“This case is about a live dispute as to whether what they [the government] took into consideration was lawful or not,” he said.
“On the facts of the Dalai Lama’s application, we submit it is necessary that this issue be decided once and for all by this court.”
Home affairs director general Mkuseli Apleni said in an answering affidavit to the application that Pretoria’s One China policy, South Africa’s Brics membership, and Deputy President Kgalema Motlanthe’s recent visit to China were all taken into account when deciding whether to grant the visa.
Government was also mindful of the fallout other nations experienced after they hosted the exiled Tibetan spiritual leader, who is blacklisted by China as a separatist.
South Africa feared a backlash from China similar to those experienced by France and Australia when they allowed the Dalai Lama to visit.
He said the Dalai Lama was granted a visa in 1996 because the government had only adopted the One China policy in 1998.
The hearing continues. — Sapa