Ministers who balk at the law

I am an immigration lawyer at the coalface of bureaucratic wrath. The dignity of my profession, my representation of clients and as an officer of the courts, is too frequently disabused by the department of home affairs officials. In fact, the statutory recognition of my ability to make such representations in terms of the Immigration Act was repealed by its latest amendments in May 2014.  

Consular staff at foreign missions in Berlin, Manila, Moscow, London and The Hague too often express open antagonism towards legal representation, statutory compliance and the values governing public service as enshrined in section 195 of our Constitution, including accountability and service delivery. The repeal of section 46 of the Act was no doubt a consequence of a growing culture of disdain for the legal profession, which has routinely challenged home affairs in our courts.

This phenomenon stems from the period 2009 to 2012, when Nkosazana Dlamini-Zuma, the current African Union chairperson, was minister of home affairs. She seemed to provoke in the bureaucratic mindset an opposition to the law. She appeared to encourage the hiring of cadres and security personnel without immigration or legal experience, putting them into managerial positions responsible for policy formulation and implementation. This lack of expertise is reflected in today’s dysfunctional immigration regime. 

My personal experiences of this were first reflected in a Pretoria high court judgment about a Chinese citizen unlawfully refused entry at OR Tambo airport in November 2009. 

During the case, the head of South Africa’s immigration system, deputy director general Jackie McKay, told the judge he knew more about the law than the judge did — and hung up on him. The judge decided not to jail McKay for contempt, because McKay apologised for his behaviour.

It is disquieting that we continue to observe adverse decisions on immigration applications from McKay —bewilderingly unlawful in substance, frequently absurd in their intelligibility and unbridled in volume. It has been impossible to stem this tide, despite our efforts to do so.

When the Dalai Lama applied for a visa at the South African High Commission in India in October 2011, every effort was made by Dlamini-Zuma to frustrate a decision on the visa application. As the minister, she had a statutory duty to determine a visa application in a reasonable period of time. The Supreme Court of Appeals concluded that “the matter was deliberately delayed so as to avoid a decision. It hardly needs saying that the minister is not entitled to deliberately procrastinate.” 

The court found the minister’s delay unlawful, motivated by surreptitious political considerations. Unfortunately, only in important cases does the public get to know about these instances of delinquency; constraining abuse of power by government officials is a daily hardship for courts and attorneys. 

Even important empirical studies of government behaviour, such as the Ibrahim Index of African Governance, fail to measure the extent to which the South African government complies with court orders.

David Hausman, a doctoral candidate at Stanford University, examined the South African government’s compliance or noncompliance with Constitutional Court orders from 2005 to 2011. He found that government complied fully with only half of those orders, and — because of its inertia, incapacity or purposeful intent — did not comply with the balance. He concludes “the lack of principled disagreement and public noncompliance as it actually occurs does little to further the democratic values that motivate the opponents of judicial review”.

When government begins to ignore court orders and legal imperatives, especially with the complicity of increasingly tolerant judges, our political model of governance based on the centrality of the Constitution and the separation of powers begins to transform into a dictatorship. Implicit in government compliance with court orders and statutory law is personal respect for the rule of law by individual public officers as a foundational value of our society. 

On June 14, the Pretoria high court issued an interim order directing government to ensure Sudanese President Omar al-Bashir be arrested and prevented from leaving South Africa. The International Criminal Court (ICC) issued two arrest warrants for Al-Bashir, for war crimes. South Africa had joined the ICC in 2002. Much analysis ensued on South Africa’s international obligations under the Rome Statute, and the immunity the president granted Al-Bashir when the Sudanese leader was in Johannesburg for the African Union summit.

The saga’s shock was Cabinet’s collusion in refusing to comply with the interim court order. The case’s respondents included all the executive functionaries of the government (including ministers of Cabinet, police authorities and the minister and director general of home affairs). The interim order was handed down on the Sunday, while Al-Bashir was in Gauteng. The return date was the next day at 11.30am.

On June 15, a full bench of the Pretoria high court concluded that government’s contempt of the interim order was inexcusable.

The court was moved to say that a “democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the cornerstone of a democratic system based on the rule of law. If the state, an organ of state or state official [do] not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues.”

The court found it necessary to invite the national directorate of public prosecutions to determine if criminal proceedings were appropriate. To date, the directorate hasn’t decided to prosecute those responsible for contempt of court.

This chronology of events seems to suggest the court was complicit in entertaining the state’s tardiness to file its pleadings. The interim order directed the respondents to file their answering affidavit by 9am on June 15; they did so more than two hours later, with no explanation. No application for condonation by the respondents was sought by the court. That delay ensured Al-Bashir’s departure from South Africa before final judgment was handed down.

The Al-Bashir case is a single illustration of a dangerous trend. If the executive and the public service continue to emasculate the judiciary and the legal profession, diminishing its role in our democracy, we are heading for calamity. It is ironic that we are now revisiting what was feared most at Codesa when the end of apartheid was negotiated: that a government would one day throw off all constraints in its exercise of power.

Gary S Eisenberg is an immigration lawyer and partner at Eisenberg de Saude, dealing with South African immigration and citizenship law

Gary Eisenberg