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Minister Motsoaledi apologises to South Africa for ‘the mess created’ by his department

Minister Motsoaledi apologises to South Africa for ‘the mess created’ by his department
Minister of Home Affairs Aaron Motsoaledi. (Photo: Leila Dougan)

Home Affairs Minister Dr Aaron Motsoaledi says he was unaware of a court application launched by his department until he saw a Daily Maverick article reporting on the unhappiness of Chief Justice Raymond Zondo.

In an extraordinary affidavit filed at the Constitutional Court, Home Affairs Minister Dr Aaron Motsoaledi has lambasted officials in his own department for allegedly going behind his back and filing court documents that he was not aware of.

Motsoaledi has promised to discipline all the officials involved in the process, saying they had provided “lame excuses” to the court.

Motsoaledi and the Home Affairs director-general Livhuwani Makhode are facing a potential personal costs order, which would see them paying the legal fees in the case out of their own pockets if they are unable to explain why the department ignored a court order for three years and then failed to apologise.

They have also been asked to explain why the department chose to take the extraordinary step of launching two ex parte applications, effectively going to court without informing interested parties.

“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 South Africa, minister of finance, LHR [Lawyers for Human Rights] and its legal representatives and the people of South Africa for the mess created by officials of the Department of Home Affairs,” said Motsoaledi.

“As the executive head, I am extremely embarrassed by the actions of the officials. State resources cannot be deployed to bring unmeritous [sic] ex parte applications before the courts.”

The Constitutional Court heard the application, brought by the department, on 25 May 2023 and at the time Chief Justice Raymond Zondo questioned why the court should not “regard this as a pathetic dereliction of duty”.

Zondo and several other justices asked Home Affairs advocate Mike Bofilatos SC why the department had not tendered any apology after missing by three years the deadline to amend legislation.

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

Cavalier and contemptuous attitude

Following the hearing, the court issued an order asking Motsoaledi and Makhode to explain why they should not pay for the legal costs. Motsoaledi said he was shocked to learn of what had happened in court when reading about it in Daily Maverick, as he knew nothing of the case before it went to court.

“After reading the article, I was shaking with anger as I knew that I had not instructed Mr Mike Bofilatos SC to launch any application in the Constitutional Court on my behalf and the DHA [Department of Home Affairs]. I immediately confronted the director-general and demanded a report from him and the legal services division, as in 2020 I had issued an instruction that no affidavit in any proceedings in which I am cited as a party should be filed in court without my approval.”

While awaiting an internal report, Motsoaledi became aware of the ConCourt order of 7 June in which the Chief Justice called on him to explain why the department had failed to apologise.

“This was another shocking development. I requested the director-general to instruct the legal services division to terminate the mandate of Mr Mike Bofilatos SC with immediate effect.

“On 8 June 2023, I took an extraordinary step of addressing a letter to the Solicitor-General and State Attorney terminating the mandate of the State Attorney and I copied the President of the Republic of South Africa, director-general in the Office of the Presidency and minister of finance,” he said.

Motsoaledi said government officials had “a cavalier and contemptuous attitude towards court orders”.

“When I took the reins as minister of home affairs, I found this attitude prevalent in the DHA.”

Motsoaledi said he took steps on October 2020 to develop a “communications protocol” which deals with compliance with court orders and the consequences for the failure to comply.

“The deputy directors-general are required to ensure that court orders are complied with.”

Disciplinary process

Motsoaledi added that he was unaware that the department had launched an ex parte application at the Gauteng Division of the High Court and the ConCourt, failing to include LHR, which had brought the initial case to court.

Ex parte applications are meant to be used in rare circumstances when it would not be in the interests of justice for a party to become aware of a case beforehand, such as during asset forfeiture cases.

Motsoaledi said an internal investigation revealed that the former head of litigation, Mpho Seotlela, instructed the State Attorney to brief Bofilatos, who advised the department to take the ex parte approach in the high court before coming to the ConCourt.

“Even as a layperson in law, I know the LHR ought to have been cited as a party,” he said.

The internal probe also revealed that several senior officials met to discuss the case, including:

  • Modiri Matthews, chief director at Immigration Services;
  • Yusuf Simons, acting deputy director-general at Immigration Services;
  • Richard Stoltz, chief director in the support office of the deputy director-general; and
  • Moses Malakate, the director at Drafting.

Motsoaledi said there were “conflicting versions” about who took the decision to proceed with the application as Bofilatos advised, but none of the officials had the authority to take such a decision.

“Even though the director-general states that ‘I also lodge the applications on behalf of the first applicant [Motsoaledi]’, he did not consult with me or show me the affidavit. 

“The failure by officials of legal services and the director-general is a clear violation of the strict standing instruction issues by me regarding all matters in which I am cited,” he said.

Motsoaledi added that “privileged communication” from his office was used in the application without his consent.

“I am still baffled as to how such privileged communication can be disclosed by anyone without my consent. Disciplinary measures will be taken against all officials responsible for this breach of trust and violating the standing orders and policies of the DHA.”

Lame excuses

Motsoaledi said the affidavits submitted to court “leave much to be desired” as they did not adequately explain what the department had done to amend the legislation.

In 2017, the court ordered that sections 34 1(b) and (d) of the Immigration Act were invalid because they authorised the administrative detention of undocumented foreigners for the purposes of deportation. The detention period can be extended from 30 days 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 in some cases. The ConCourt ordered the department to amend the act to deal with these defects, giving it a 24-month deadline, which ended in June 2019. 

Read more in Daily Maverick: ConCourt demands answers from Motsoaledi, Home Affairs over three-year delay in immigration case

“The steps taken by me and the DHA to effect legislative amendments are not set out in great length. This has led to this court forming the wrong impression that the DHA and I have dismally failed to perform the constitutional and statutory duties upon us. In particular, they have shown this court a middle finger and disregarded the court order,” Motsoaledi said in his affidavit.

He added that the Immigration Amendment Bill was brought as a committee bill through Parliament, not as an executive bill via his department. He also listed the various meetings and issues raised in deliberations over the bill between May 2018 and February 2019.

While Motsoaledi agrees that work on the bill was stopped because of the 2019 elections, he vehemently disagrees with the other reasons provided to the court.

“The process in respect of this type of bill is driven by the portfolio committee. I, however, dismiss with the contempt they deserve the allegations contained in the affidavit filed by the director-general that failure to effect the required amendment was due to the outbreak of Covid-19, and fire that broke out in Parliament during February 2022. This is nothing but lame excuses. The two events never affected the functioning of Parliament,” he said.

Motsoaledi says he had instructed department officials to draft an executive bill since the committee bill had lapsed and was not saved correctly.

“I was not aware that the process was halted due to a spurious application launched in this court. Instead of the officials in the drafting section starting with the process of initiating an executive bill, they were on a frolic of their own. 

“In the process, a period of more than a year is lost. In the circumstances, I am in agreement with the case as pleaded by LHR that the relief sought by the minister is incompetent. The court has no power to resuscitate and extend a suspension of invalidity once it has lapsed.”

Personal costs

Motsoaledi has argued that he should not be made to pay personal costs as the “applications were brought behind my back” and he would not have agreed to the legal counsel had he known what was going on.

“I humbly request this court not to join me in my personal capacity and not to be held liable for the costs of this application.”

Motsoaledi said his department would withdraw the existing case before the court and agreed to pay the legal fees for the matter. It is not clear whether the court will accept this suggestion, as the case has already been argued in open court.

Meanwhile, Director-General Makhode has filed a short affidavit, saying he agrees with Motsoaledi’s submissions.

“I wish to confirm the correctness of allegations contained in the minister’s [affidavit] relating to me. 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 said.

Makhode said he was “at all material times” aware of the ex parte applications but “accepted the advice from counsel that the ex parte route was appropriate”. Makhode also apologised to the Chief Justice, high court, ConCourt, Motsoaledi, minister of finance and LHR “for my actions and [those] of officials under my direct control and supervision”.

Despite these admissions, Makhode said the case for a personal costs order had not been met and he asked for the court’s pardon. DM

Gallery

Comments - Please in order to comment.

  • jcdville stormers says:

    Don’t want your apology, convince your bunch of thieves to step down

  • Cachunk Cachunk says:

    What an arrogant, useless, incompetent moron. Everybody else’s fault and he hasn’t got a clue…

  • Paul Savage says:

    This is the sort of mess that unfolds when you place incompetent cadres into positions in government for which they are untrained and probably disinterested. Shame on you ANC.

    • Sue Luck says:

      Totally agree with you Paul.
      Cadre deployment policy –
      To keep ANC politicians in power feeding at the trough of taxpayer money!
      Vote them OUT!

  • Sue Malcomess says:

    The Minister obviously doesn’t know what is going on in the Government sphere he is responsible for. The correct thing would be for him to dismiss all those he tells us are to blame and then resign. All of which is just dreaming!

  • Auke Van Der Meulen Van Der Meulen says:

    Amazing when a personal cost order is at play how quick the apology and action comes.

  • Andrew33 says:

    I didn’t know! I wasn’t aware! It happened behind my back! They’re to blame! Sounds all too familiar Aaron – don’t apologise, resign.

  • Paul Crosland says:

    The minister is leading the high life and is clueless to what is going on in his department. It’s no different in any ANC run department

  • Brian Cotter says:

    Chief Justice Raymond Zondo questioned why the court should not “regard this as a pathetic dereliction of duty”
    Who has Justice Zondo not got grovelling apologies from.

  • Esskay Esskay says:

    Only apologising because he may have to cough up. Obviously never meets with his heads of department. Too busy being a minister

  • Bryan Shepstone says:

    Just another day in government.

  • Tim Price says:

    Did he blame apartheid?

  • Glyn Morgan says:

    Wherever I look in the news today it is mainly about ANC government mega-botches! Poland, Dept. of Home Affairs, “Public Protector” and, and, and!

    It is tuly time to get rid of the ANC.

    Alan Winde has shown, once again, that the DA is the best to take over from the amateur ANC.

  • William Kelly says:

    So he has no idea what’s going on in hos own department, after three years? I expect his resignation immediately.

  • Brendan Pon says:

    Interesting to see how ministers appear to become more interested in performance of their portfolios when their wallets are on the line. There’s an idea to improve things…. *wakes up from a dream*

  • Walter Spatula says:

    At last the cadre experiences the incompetence of home affairs.

  • Anne Fischer says:

    Just passing the buck … do your job properly, man! Drive the bus! Old story of pointing fingers – you have how many pointing back at you?

  • Frans Flippo says:

    Typical Motsoaledi: happily throws his department’s workers under the bus without taking even a iota of responsibility. Poor leadership exemplified. This minister needs to step down sooner rather than later: he is obviously not competent te be a leader, let alone of a department as crucial as Home Affairs. No wonder it’s a mess.

    Meanwhile, my wife has been waiting for 4 years to get her permanent residence application approved and when asking some critical questions about why this is taking so long, the minister dared to call ME contemptuous. He obviously does not understand servant leadership.

  • Heinrich Holt says:

    Time to go and play doctor doctor again Minister. Write some prescriptions (if you can still write of course) which Pravin can dispense.

  • Katharine Ambrose says:

    As minister of health it was the same story. Tears and apology and finger-pointing.
    He clearly doesn’t think he has any responsibilities at all. And he certainly showed initiative to defend his purse. Do us all a favour.. Resign.

  • Rencia Cloete says:

    Make them pay! Hold up the personal costs order. Maybe someone learns something about taking their government jobs seriously. Humbly my foot! Do not let these fools get away with it AGAIN!!

  • jacki watts says:

    Me thinks he “protests too much” .. As head he is clearly the one they tried to bypass… One can’t imagine why…!!

  • debruinfam says:

    Give him ten minutes community service at Luthuli house suspended for 10years, THAT will teach him a lesson!

  • Beyond Fedup says:

    A typical useless anc cadre! Whatever this incompetent touches turns to failure. When will you apologise for deliberately trying to steal SA citizens birth right in keeping a SA passport even though they may have another country’s one as well? You just got slapped down by the Constitutional Court!! Typical anc – they think they are above the law!

  • louis viljee says:

    The government of shock! If not the President, now Minister Motsoaledi. The minister who takes no responsibility. The only thing that’s not shocking, as it is supposed to be, is Eskom. Because it’s been killed! What a bloody disaster! Let’s eat more cake.

  • jonathan65 says:

    Ignorance is not an excuse, especially at the highest levels of the organisation. You’re still accountable. Throwing the advocate under the bus just isn’t good enough. The cost order should stand. You sir, are responsible for your departments action.

    It’s a really simple report.
    Every corporate has an active monthly/quarterly litigation report.

  • Arthur Lilford says:

    Nincompoops united – ably supported by 0ur “present apartheid” government

  • Donald Moore says:

    Was the advice given by Mr Mike Bofilatos SC that an ex parte application was appropriate. If so I hope that he will not be paid for such incompetent advice.

  • Brian Doyle says:

    Another blame game. Motsoaledi should pay the costs as this happened on his watch, and he cannot deny that fact. He should also seriously discipline all the officials. However it does beggar the question as how did these officials meet and discuss the actions taken without their boss not knowing about it.
    Does he ever go into the office.

  • Tana Speck says:

    What a moron

  • Peter Worman says:

    Just looking at him gives the impression that he doesn’t seem to aware of what planet he’s on. He helped destroy the dept of health and he’s doing the same to home affairs. Time he took a long walk off a short plank

  • Lisbeth Scalabrini says:

    Mr. Motsoaledi, you obviously have been on a very long holiday, because things in your department have not been working well for ages. I suppose that this ” made to pay personal costs” woke you up from your Sleeping Beauty dreams.

  • Alan Watkins says:

    “As the executive head, I am extremely embarrassed by the actions of the officials. ”

    Surely the DG is the executive head (equivalent of CEO) while Motsoaledi is the political head and representative shareholder, equivalent of chairman of the board and 100% shareholder respectively?

  • virginia crawford says:

    He’s embarrassed as the executive? Add ineffectual and incompetent to the list, and resign. An apology in these circumstances is an insult.

  • Wiilliam Cadman says:

    He should resign out of decency, failing which he should be fired .

  • Barrie Lewis says:

    So, Motsoaledi reads the Daily Maverick. Interesting. I wonder how many other cabinet ministers read it. I wonder if the president reads it? If so there’s hope yet for SA. But I wouldn’t put money on it.

  • D'Esprit Dan says:

    Motsoaledi’s useless oversight of of the Health Department is the key reason we face the calamitous NHI – he destroyed what was left of the system and then got shifted to Home Affairs, where he’s been similarly disastrous. But ANC politics dictates that delicate factional balances always, 100% of the time, trump sensible appointments of capable people. Disgusting, but completely in line with ANC ‘party first, people, what people?’ attitude.

  • paul7271 says:

    The ONLY reason he is now applying his mind, is because he might have to pay the legal costs himself. And he should… You’re the boss – and when it goes right you get the rewards, and when it goes wrong you should get the punishment. That’s why they pay you the big bucks.

    It’s called ACCOUNTABILITY. I know, I know, Aaron… you don’t think it should apply to you.

    But lets hope the court makes him pay.

  • Colin Tossel says:

    Ramaphosa surrounding himself with these failures to look better.

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