Home affairs minister Aaron Motsoaledi was left “shaking with anger” after he read in the media about a grilling his counsel got at the Constitutional Court for an application to “revive” a 2017 court order that had lapsed in 2019.
The court case was launched “behind my back”, he said in an affidavit to the ConCourt, filed on Thursday. “I knew that I had not instructed Mike Bofilatos SC to launch any application in the Constitutional Court on my behalf.”
Motsoaledi was responding to directions issued by the apex court last week, asking why he should not be held personally liable for the costs of the “ill-conceived” application, particularly in light of his failure to return to court to seek an extension before the court order had lapsed and his failure to offer an apology.
During the hearing chief justice Raymond Zondo said: “I have been around a long time. I don’t think I have seen anything like this.” Zondo twice raised the fact that the minister had nowhere in his court papers seen fit to apologise.
The 2017 court order found parts of section 34 of the Immigration Act, which provided for the detention of people in the country illegally, to be unconstitutional and struck them down because they allowed for 30-day detention without automatic judicial oversight. The court also found it unconstitutional that the 30-day period could be extended by 90 days without a requirement that the detained foreigner appear in court.
There are conflicting versions as to who ultimately accepted the legal opinion and gave instructions that an application should be launched on my behalf in the Constitutional Court
— Aaron Motsoaledi, home affairs minister
The ConCourt suspended its order for two years to allow parliament time to fix the legislation. It ordered that, in the meantime, anyone detained under section 34 had to be brought before a magistrate within 48 hours.
The department had apparently only come back to court because confusion caused by the delay and the court’s 2017 order had led some magistrates to refuse to conduct section 34 inquiries.
This had affected the ability of home affairs to deport illegal foreigners, the department's director-general Livhuwani Makhode said in his application to the court.
In the affidavit this week, Motsoaledi said: “I would like to take this opportunity to extend my sincere apology to the chief justice, all judges of the high court and Constitutional Court, the president of the Republic of South Africa, minister of finance, LHR [Lawyers for Human Rights] and its legal representatives and people of South Africa for the mess created by officials of the department of home affairs.”
He said he was unaware of the case until he read about it in Daily Maverick. Had he known, he would not have agreed with the legal advice of counsel, he said. After receiving the directions of the court, he terminated the mandate of Bofilatos.
Motsoaledi said an investigation by his DG had shown that counsel had consulted officials in the department and had advised that an application be launched on an ex parte basis (without including LHR, which had brought the case to court originally, as a party). The advice was not shared with him, he said.
“Even as a layperson, I know that LHR ought to have been cited as a party,” he said.
“There are conflicting versions as to who ultimately accepted the legal opinion and gave instructions that an application should be launched on my behalf in the Constitutional Court,” he said. None of the officials involved had the authority to take the decision.
The affidavits filed in court also left “much to be desired” in explaining the delay in implementing the court order, leading the court to form a “wrong impression that the [department] and I have dismally failed to perform constitutional and statutory duties”.
“In particular, they have shown this court a middle finger and disregarded the court order.”
He said what happened was that a bill to implement the court order — to amend the Immigration Act — was first introduced as a committee bill, a process “much shorter and less complicated” than if an executive bill were to have been used. Initial delays came because of public consultation requirements, and the seeking of legal advice. Things were put on hold because of national elections in 2019.
Then, in 2020, the portfolio committee did no further work on it. “Neither the minister nor the DHA could do anything as that was the committee bill,” he said.
I was not aware that the process was halted due to a spurious application launched in this court
— Aaron Motsoaledi, home affairs minister
But he dismissed “with contempt” the explanation given by the DG in court papers, blaming the pandemic and the fire in parliament. “This is nothing but lame excuses. The two events never affected the functioning of parliament,” he said.
However, the minister did not explain why he never came back to court for an extension after the court order lapsed. Instead, he said it was decided last year to introduce the amendment by way of an executive bill. As far as he was concerned, this process was “under way”.
“I was not aware that the process was halted due to a spurious application launched in this court,” he said.
DG Livhuwani Makhode also filed an affidavit. He was the deponent to the court papers in the Constitutional Court that Motsoaledi criticised.
He said: “I accept now in hindsight that I ought to have applied my mind fully to the facts contained in both affidavits. I should have accepted that an application of that nature ought to have [been] sanctioned by the minister.”
He also accepted that the explanations he gave for the delay in his affidavit, blaming the pandemic and the fire in parliament, were “unsustainable”. Makhode apologised for “my actions and that of the officials under my direct control and supervision”.
Both men asked that they not be held personally liable for the costs of the application.
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