Lawyers for Human Rights (LHR) says Home Affairs Minister Dr Aaron Motsoaledi is constitutionally bound to take responsibility for the actions of those in his department. 

The LHR was responding to affidavits submitted to the Constitutional Court after Chief Justice Raymond Zondo demanded that Motsoaledi and Director-General Livhuwani Makhode explain how the department ignored a Constitutional Court order and failed to apologise when they eventually returned to court. 

The ConCourt is considering making Motsoaledi and Makhode pay a personal costs order for the case, which would see them pay the legal fees for both sets of lawyers out of their own pockets.

In an affidavit submitted to the ConCourt on 22 June, the LHR national director, Zibusiso Ncube, noted that although Motsoaledi had distanced himself from the actions of the department’s staff, the Constitution does not allow him to do so.

“Section 92 of the Constitution explicitly states that ministers are responsible for the powers and functions of the executive assigned to them, and ministers of the Cabinet are accountable to Parliament for the exercise of their powers and the performance of their functions. 

“This honourable court has also previously commented on the primary responsibility of a department to fulfil its objectives as resting on a minister, rather than individual officials within the department. 

“Accordingly, despite the purported wrongdoings of officials within the Department of Home Affairs, it is the first applicant [Motsoaledi] that is accountable for these officials,” Ncube said. 

In 2017, the department was given two years to amend sections of the Immigration Act, but missed the June 2019 deadline. The department also did not file a request for an extension of the court order and when it finally came to court in 2023, did not tender an apology. 

Instead, it blamed the 2019 elections, the Covid-19 pandemic and the fire in Parliament for missing the initial deadline. ConCourt judges questioned these excuses since the pandemic and fire happened months after the deadline had passed.  

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

In an affidavit filed on 15 June, Motsoaledi said the staff in his department had gone behind his back when filing papers in the case. He also said several staff members would face disciplinary hearings for not informing him of the case and for submitting an ex parte application, which meant they went to court without informing the other party in the case, the LHR. 

‘Extremely embarrassed’

“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.”

He added that the department had terminated the services of the advocate in the case, Mike Bofilatos SC, along with the services of the attorney-general and state attorney. Motsoaledi said that he had previously issued an instruction that he should be informed of any case where he is personally cited, which he said was not done in this case. 

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

Motsoaledi apologised to the court, President Cyril Ramaphosa and South Africa at large. 

Read more in Daily Maverick: Minister Motsoaledi apologises to South Africa for ‘the mess created’ by his department 

Motsoaledi lays considerable blame at the door of Makhode, who he says deposed an affidavit to court without Motsoaledi’s knowledge. 

“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,” Motsoaledi said. 

Gross negligence

Ncube has told the court that while the LHR doesn’t want to weigh in on whether Makhode and Motsoaledi should pay personal costs, the court should consider their conduct and responsibilities.

“The second applicant [Makhode] at multiple instances admits gross negligence in the conduct of proceedings, including at paragraph 7; the second applicant admits to not applying his mind to the affidavits filed in these proceedings despite confirming on oath when deposing to the affidavits that he knew and understood the contents of the affidavits,” he said.

Ncube added that Motsoaledi’s request to simply withdraw the case should be disregarded. In 2016, the LHR took the Department of 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 prior to deportation. The detention period can be extended by a court from 30 days to 90 days or a maximum of 120 days. 

The court will need to decide how to amend the current order to ensure the rights of those detained are not violated while the department concludes the legislation.

During argument, the LHR suggested a framework in which the ConCourt could provide immigration officers and magistrates with some guidelines on what to do while the department finalises legislation. It also suggested the court order the department to provide regular progress reports on the amendments to the Immigration Act. DM