Home Affairs has conceded it conducted itself delinquently by failing to act on a citizenship application that proceeded against it before the North Gauteng High Court, in Pretoria, for two years.
Its disregard for the high court came back to haunt it on Thursday at the Constitutional Court, where it sought to argue a peculiar case. Its counsel faced stinging questions and criticism from the Bench.
The department tried to convince the court to remit the matter, which they lost in absentia, back to the high court.
The remittance was necessary because arguments of facts had to be deposed in the high court, before they could be re-argued in the Concourt.
Lawyers for the citizenship applicants argued for confirmation of the high court order.
This order in favour of Yamikani Vusi Chisuse, Martin Hoffman, Emma Dullaart and Amanda Tilma, who argued that they qualified for citizenship by virtue of their parents being South African, was delivered in May last year.
In fact, the order was prepared by lawyers of the applicants owing to the truancy of the department in the proceedings.
The lawyers, roped in by Lawyers for Human Rights, produced a draft as it usually happened when respondents showed no interest in a matter and the judge made it an order of the court.
The applicants, two of whom were born in Zimbabwe, one in Ghana and another in Malawi, maintained that sections introduced to the Citizenship Act in 2013 violated the rights of those born outside of the country to South African parents.
These sections barred birth registrations of people in their category, they argued.
Counsel for Home Affairs, Simon Mangolele SC, faced tough questions from the Bench about why his clients ignored the high court proceedings.
One Justice said it was “particularly disturbing it boggles my mind” that the department disregarded the high court and then wanted to argue facts in the Concourt.
Another said: “I don’t see how they can bring a dispute of fact when they had an opportunity countless times do so, and they did not put up anything.”
Mangolele conceded that Home Affairs had acted improperly. “I’m not here to try to justify the conduct of the State respondents insofar as their failure to file the necessary answering affidavit.
“It is clearly specified in the affidavit by (director-general Thulani) Mavuso on behalf of the State respondents that it is not justifiable conduct, it is regretted and it was not supposed to happen.”
Isabel Goodman SC, counsel for the applicants, said there was no legal basis to grant a remittance order.
Home Affairs sought mercy it did not deserve from the apex court, she said.
“This is a delinquent department that has rendered itself beyond the indulgence of this court.
“The court will know that this application was brought in September 2016. The department was ordered in May 2017 to file an affidavit by the end of June. They didn’t.
“It was then called by the Deputy Judge President of the Pretoria High Court, Justice (Aubrey) Ledwaba, and, according to the department, he merely reprimanded their failure and directed them to file by April 2018, and again they didn’t,” Goodman said.
“Finally, in May 2019, an order was given. I will submit that they are simply not an applicant that the court should bend over backwards to assist.”