The Constitutional Court has given Home Affairs Minister Dr Aaron Motsoaledi and the department’s director-general a week to explain why they should not personally pay the legal costs for a recent court case that saw the department admit to ignoring a court order for three years while providing a flimsy explanation for so doing.

The department recently approached the court to request that the order, made in 2017, be “revived” after it had lapsed. Neither the minister nor the DG tendered any apology for the delay or for not coming to court sooner. Instead, they blamed the 2019 elections, as well as the Covid-19 pandemic and a fire at Parliament, both of which took place long after the court deadline had passed.

During the hearing, Chief Justice Raymond Zondo questioned the Home Affairs lawyer, advocate Mike Bofilatos SC, about why the department had not bothered to apologise.

Read more in Daily Maverick: Zondo questions ‘pathetic dereliction of duty’ after Home Affairs ignores ConCourt order for three years

 “I may have missed this in the papers. But I don’t see any apology from the minister or the director-general for what happened here. The order expired without the minister and the director-general approaching this court asking for an extension. That is the usual thing to do,” Zondo said.

He went on to say: “I have been around for a long time. I don’t think I have seen anything like this, in terms of such an important order being allowed to lapse and the court being approached two years later.”

In 2016, Lawyers for Human Rights (LHR) took Home Affairs to court over the practical application of section 34.1(b) and (d) of the Immigration Act. The sections authorised the administrative detention of undocumented foreigners for the purposes of deportation. The detention period can be extended from 30 days by a court to 90 days or a maximum of 120 days.

At the time, LHR had argued that in many cases people were being detained for more than 120 days, sometimes for six months or longer, without appearing in court or being informed of their rights.

Read more in Daily Maverick: Hell Affairs

The court ruled that Home Affairs should introduce new legislation to amend a situation where undocumented foreigners could be held for extended periods without appearing before court. It was given 24 months to amend the legislation, and while Home Affairs started the process in Parliament, the law was never concluded.

In an order issued on 7 June, Zondo said Motsoaledi and DG Livhuwani Makhode should submit affidavits explaining why they should not be personally joined in the case and “why they should not be held personally liable for the application by reason of failing to take the necessary steps to enact remedial legislation as ordered by this court” on 29 June 2017.

Zondo also asked for an explanation about the manner in which the litigation was handled and why no apology was given.

The court also wants an explanation of why the department advanced the Covid-19 pandemic and Parliament fire as reasons for the delay when these events took place after the deadline had passed.

Motsoaledi and Makhode must submit their affidavits by 15 June. DM