Eisenberg & Associates and Others v Director General of Department of Home Affairs and Others (2178/2011) [2011] ZAWCHC 437; 2012 (3) SA 508 (WCC) (23 November 2011)

1

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 2178/2011

In the matter between:

EISENBERG & ASSOCIATES …..................................................................................First Applicant

COLIN SLESSOR …................................................................................................Second Applicant

AMOS SERFATY ….....................................................................................................Third Applicant

BRIAN GANSON …...................................................................................................Fourth Applicant

IMMIGRATION MANAGEMENT SERVICES

SA t/a VISA ONE …......................................................................................................Fifth Applicant

v

DIRECTOR-GENERAL OF THE

DEPARTMENT OF HOME AFFAIRS …...................................................................First Respondent

MINISTER OF HOME AFFAIRS ….....................................................................Second Respondent

ACTING CHIEF DIRECTOR: PERMITS ….............................................................Third Respondent

DIRECTOR: VISA AND TEMPORARY RESIDENCE …......................................Fourth Respondent

DIRECTOR OF IMMIGRATION

SERVICES: WESTERN CAPE …......................................................................Fifth Respondent

Heard: 16 November 2011 Court: Acting Judge J I Cloete Delivered: 23 November 2011 JUDGMENT CLOETE AJ: Introduction: [1] The 1st and 5th applicants who are immigration practitioners ('the applicants) seek certain amended procedural relief from the respondents. The relief sought by the 2nd to 4th applicants (who were affected individuals) has fallen away. The nature of the relief sought is to compel the respondents to: (a) determine certain outstanding temporary residence permit applications and/or review applications and/or administrative correction applications within 30 days; (b) determine any subsequent review and/or administrative correction applications which might arise from applications relating to the outstanding temporary residence permit applications within 6 weeks of submission thereof; and (c) obtain, at the respondents' expense, any applications misplaced by them in order to give effect to the aforegoing. [2] The relief is couched in the form of judicial review, alternatively for a mandatory interdict. For purposes of the relief sought 'determine' means to decide, deliver and immediately make available to the applicants the 'determination' in each instance upon its arrival at the Cape Town office of the 1st respondent. [3] Although the applicants seek relief against all 5 respondents, it is essentially directed at the 1st respondent (who is responsible for the administration of the 3rd to 5th respondents) and the 2nd respondent (who is the political functionary responsible for the Department of Home Affairs, or 'DHA). [4] The applicants' central complaint relates to the failure of the respondents - who are government officials generally in charge of immigration-related affairs in South Africa - to determine temporary residence permit applications, review applications and administrative correction applications within a reasonable time. [5] The applicants' attack is not directed at any deliberate misrepresentations on the part of the respondents, but at a consistent pattern of administrative bungling and a failure to comply with promised deadlines. [6] The respondents deny that the relief sought by the applicants is competent and further deny any administrative bungling on their part. They seek the dismissal of the application. Background [7] There is a plethora of detail in the papers, but the essential facts which are material to the determination of the matter appear to be the following. [8] The backlog of applications which is at the heart of this case began in May 2010. Initially the applicants did not make anything of the delay as they respected the burdens placed on the respondents' time and ultimately expected the applications which they had made on behalf of their clients to receive proper treatment. [9] Regulation 7(6) of the regulations pertaining to the Immigration Act 13 of 2002 ('the Act) reads as follows: '(6) A foreigner who is in the Republic and applies for a change of status or conditions relating to his or her temporary residence permit, or for an extension of the period for which the permit was issued, shall submit his or her application at least 30 days prior to the date of expiry of that permit...' [10] The regulation thus envisages that it will not take longer than 30 days to finalise an application of this nature - it would otherwise not be required of an applicant for such an application to be filed 'at least 30 days' prior to the expiry of a current permit. An applicant may thus file such an application on the 31st day prior to the expiry of a current permit and reasonably expect it to be dealt with by the date of expiry thereof. This is not seriously disputed by the respondents. [11] By August 2010-2 months after the 30 day 'deadline' the applicants began making enquiries about the status of the applications submitted. These enquiries were in the form of a number

of letters addressed and telephone calls made to a variety of departmental officials including the 4th and 5th respondents. Other than various promises made by certain of these officials that the applications would receive attention, no other response was received by the applicants until 19 November 2010 by way of an email addressed by the 4th respondent to, inter alia, the 5th respondent and copied to them, in which they were advised that: 'The applications mentioned in Mr Eisenberg's letter was [sic] mostly submitted well before we started with the centralisation of adjudication. Some applications on the [Track and Trace Online System] reflect that the applications were only received and nothing further. Please investigate and provide me with an update.' [12] At around the same time (on 18 and 25 November 2010) the DHA released media statements which reflected the apparent seriousness with which they regarded the problems in their permit section. According to these media statements substantial resources were being allocated to deal with the backlog problem and all applications for extensions of temporary residence permits would be finalised within 48 hours of submission. [13] The media statement of 18 November 2010 contains the following: 'In response to this impassioned plea from Minister Dlamini Zuma as well as the huge cries for help by the affected sections, the following new measures have now been put in place to deliver faster and Quality service delivery to businesses, foreign workers and students: 1. Appointed a new Acting Chief Director-Permitting-Jacob Mamabolo, based at Headquarters in Pretoria to oversee the new process. His contact numbers are as follows: (cell) 082 884 1868, (Tel) 012 810 7322, E-mail: Jacob.mamabolo(S).dha.gov.za 2. Mamabolo will lead a dedicated team of immigration officials, who shall receive, adjudicate and immediately issue such permits from Headquarters. 3. All permits - study, work or business permits - shall from now onwards be adjudicated and issued from our Headquarters in Waltloo, Pretoria' ….......... The department will do everything in its power to respond to the Ministerial directive in an attempt to make everything possible to ensure foreigners can contribute meaningfully to the development of our country without any obstacles through the timeous issuance of permits to all concerned.' (Emphasis added.) And the second media statement of 25 November 2010 the following 'Pretoria - Minister of Home Affairs, Dr. Nkosazana Dlamini Zuma has issued a Departmental directive that all foreigners seeking extensions to their individual permits in terms of the provisions of the Immigration Act, 2002 be granted such extensions within 48 hours. This includes all permits excluding the Intra-Company Company Transfer Permit. [The current delays in processing have] impacted negatively on the lives of applicants who met the requirements of the Act by applying within the reguired 30 day period. By granting extensions within 48 hours, the applicants will be able to travel, work, study and conduct business as stated in the initial terms and conditions of the permit they seek to extend. Minister Dlamini Zuma's directive is a consequence of a thorough analysis that identified various logjams which previously acted as impediments in the Department's quest to expeditiously address applications for permit extensions. The directive by the Minister follows various measures announced last week to centralise the issuing and extension of all permits. It is anticipated that the additional measures being announced today will provide further impetus to Government's drive towards accelerating quality service delivery to all citizens and foreigners alike.... To underpin Minister Dlamini Zuma's directive that extensions of all applicable permits be resolved within 48 hours, the Department has now put in place the following measures: A dedicated email facility, permit.extension@dha.gov .za, where foreigners can contact the Department to verify the status of their applications for an extension. Applications will still be received in the Regional Offices. The creation of a dedicated fax line. 086 532 6320, to submit proof of application to expedite the issuing of permits. The Department has also established a dedicated call centre where dedicated staff will assist foreigners seeking assistance. The following are the dedicated contact numbers for the call centre: 082 888 8328 082 809 5307 082 801 8766 079 519 3105 This new service will be in operation from Monday 30 November 2010 and will be operational during 07h00-16h00. We are confident that these measures will make a significant contribution towards enhancing the Department's approach to the speedy extension or the issuing of new permits.' (Emphasis added.) [14] These media statements notwithstanding and despite further correspondence by the applicants to the respondents, the delivery of copies of all outstanding applications to the 3rd and 4th respondents at their request, and verbal promises made to the 1st applicant, not a single application was determined within 48 hours, or for that matter within a week or a month thereafter, by the respondents. [15] An affidavit filed by Ms de Saude, the 1st applicant's candidate attorney, reveals the following. [16] On 2 December 2010 the 4 respondent returned the telephone call of the 1 applicant's Mr Eisenberg ('Eisenberg) and instructed Eisenberg to transmit to him directly copies of the acknowledgment of receipts, cover letters, passport title pages and last temporary residence permits of each applicant ('the documents). These were not to be sent to the general email address permit.extension(g)dha.gov.za which had been set up in terms of the 2nd respondent's new adjudication process, but to the 4th respondent's email address. [17] On the same day Ms de Saude called one of the contact numbers (+27828888328) published on the website of the DHA which number was also set up as part of the 2nd respondent's new adjudication process. She spoke with an 'Anton' who confirmed that within 48 hours of receipt of the documents, as a result of this new adjudication process, all outstanding

applications would be finalised. [18] On 3 December 2010 Ms de Saude transmitted to the 4th respondent the documents for 54 pending extension/renewal applications for the 1st applicant's clients. [19] On the same day Ms de Saude received two emails from the 4th respondent's email address, in which the 3rd respondent was copied. The first email forwarded Ms de Saude's previous email in which the documents for the 54 extension/renewal applications were attached, to the general email address. Ms de Saude then received an email from Ms Elzabe Fisher, the personal assistant to the 4th respondent, advising her that the documents and any queries relating to outstanding extension/renewal applications should be sent to the general email address. This was in direct contradiction to the 4th respondent's instruction a day earlier. [20] On 8 December 2010 and as a result of a telephone conversation which Eisenberg had had with a Ms Reyneke of the respondents, Ms de Saude transmitted the documents in respect of the 54 pending extension/renewal applications, which she had previously conveyed to the 4th respondent on 3 December 2010, to Ms Reyneke. [21] On 10 December 2010 Ms de Saude sent Ms Reyneke an urgent email regarding the pending application for a client, Ms L Clarke, whose application was filed on the basis of her life-partnership with a South African citizen on 19 August 2010. Ms Clarke needed to leave the country urgently. Ms de Saude requested whether it was possible for Ms Reyneke to adjudicate Ms Clarke's application prior to her departure on 15 December 2010 as the last temporary residence permit endorsed in Ms Clarke's passport expired on 3 November 2010. When she did not receive a response from Ms Reyneke, she sent her an sms from her mobile phone. Ms de Saude received an sms response from Ms Reyneke advising that she was preoccupied. She was told to contact the 4th respondent in relation to her request about Ms Clarke. [22] On the same date Ms de Saude called the 4th respondent's landline number to discuss Ms Clarke's situation, as well as 'bridging permits' which had apparently been promised by Ms Reyneke for first-time applications, to no avail. Ms de Saude then called the 4th respondent on his mobile phone. He did not answer his mobile phone and she left a detailed message requesting that he revert to her as soon as reasonably possible. Ms de Saude did not receive a response. [23] Later that afternoon Ms de Saude called another mobile number on the website of the DHA (+27795193105) and spoke to a Mrs Herbert. She explained to Mrs Herbert the situation regarding the outstanding applications (particularly the applications of clients who were to receive 'bridging permits) and the non-responsiveness of all the officials she had been communicating with, including the 3rd and 4th respondents. Mrs Herbert suggested that Ms de Saude speak with 'Solly', whom she introduced as her supervisor. After explaining the situation to Solly he advised that he would get the 4th respondent to revert to Ms de Saude. No response was received. Ms de Saude also tried calling the 3rd respondent on his landline and mobile phone numbers but they were unanswered. [24] Over the period 13 to 15 December 2010 Ms de Saude, together with the other staff employed by the 1st applicant, spent many hours searching through their files, making copies of the documents for the first-time applications and scanning these documents so that they could be transmitted electronically. She emailed the documents for 134 of the 1st applicant's clients to the 4th respondent and copied the 3rd respondent, Ms Reyneke and the 4th respondent. The purpose of emailing these documents was to assist in the provision of the 'bridging permits' which the 1st applicant had been advised by the 4th respondent would be issued to these clients. [25] On 13 December 2010 Ms de Saude called Ms Reyneke on her landline and mobile numbers in order to obtain an update in respect of the pending applications but there was no answer. [26] On the same day Ms de Saude contacted the 3rd respondent on his landline and mobile numbers regarding this issue, to no avail. Later that morning, after hiding her caller identity, she again called the 3rd respondent on his mobile number and he answered. After introducing herself and explaining the purpose of her call, the 3rd respondent rushed her off the phone, telling her that he was busy driving, would not be available for the rest of the day and that she should call him the following day. Ms de Saude informed the 3rd respondent that she had been trying unsuccessfully to reach him on numerous occasions over the past days. The 3rd respondent promised her that he would answer her call the following day and also promised that he would assist her. [27] On the following day Ms de Saude called the 3rd respondent on his landline and mobile numbers on a number of occasions throughout the day but there was never any reply. [28] On the same day (14 December 2010) Ms de Saude called the 4th respondent on his landline number and spoke with 'Amanda' who advised that the 4th respondent was not in the country. Amanda advised that she had not received Ms de Saude's emails regarding the documents for the 'bridging permits' and that she would request the 4th respondent to respond. Ms de Saude then received an email from the 4th respondent's email address advising that Ms Fisher, the 4th respondent's personal assistant, would respond to her in due course. [29] On 15 December 2010 Ms de Saude again called the 3rd respondent on his landline and mobile numbers, to no avail. She also received 8 emails from the 4th respondent's email address confirming receipt of 14 first-time applications which she had transmitted to him for 'bridging permits'. [30] On 17 December 2010 Ms de Saude called the 3rd respondent on his landline and mobile numbers with no success. She was thereafter on Christmas vacation and returned on 3 January 2011. [31] On 6 January 2011 Ms de Saude called the 3rd and 4th respondents on their landline and mobile numbers, to no avail. [32] On the same day she called Ms Reyneke on her landline number and 'Jackie' answered. Jackie advised Ms de Saude that Ms Reyneke was on leave until the end of January and that she should contact 'Mavis' (on +27218108151) who was part of the team attending to the adjudication of overdue applications. Ms de Saude called that number and spoke to 'Ruth' who told her that Mavis was not taking any calls and that she (Ruth) would assist her. Ms de Saude checked on 3 applications which had been filed with the DHA in December 2009 and Ruth confirmed that these applications were still pending. The 1st applicant's list of the outstanding applications was extensive and Ruth asked that Ms de Saude email her a copy of that list, which she did. This was for the purpose of Ruth retrieving these particular files from the DHA storeroom for adjudication purposes. Ms de Saude later received an email from Ruth confirming that she would do her best to assist where possible. [33] Again on the same day Ms de Saude resent certain of Eisenberg's emails to the 3rd respondent and copied the 4th respondent, Ms Fisher and Ms Reyneke. She called the landline telephone number of the 4th respondent and spoke with 'Mari-Anne'. Mari-Anne advised Ms de Saude that she was responsible for retrieving the 4th respondent's emails in his absence and she had not yet received Ms de Saude's email. Mari-Anne further advised that the 4th respondent had not been in office for the past 3 weeks as he had been on leave for 2 weeks and then in hospital for a week. She did not know when he was scheduled to return to office. When Ms de Saude told Mari-Anne that she was trying to reach the 3rd respondent urgently, Mari-Anne responded that she did not understand why he was not answering his landline and/or mobile phone as he was in the office and was available. Mari-Anne instructed Ms de Saude to call the 3rd respondent's secretary, Kato' (+27218107322). [34] Ms de Saude then called Kato on that number. After a short while someone answered the telephone but then hung up before she was able to speak. Ms de Saude tried the number again and this time there was no answer. [35] On 7 January 2011 Ms de Saude called Mari-Anne again on the 4th respondent's number to establish whether or not she had received her email of the previous day. Mari-Anne advised Ms de Saude that she was in a meeting and would check the 4th respondent's email if and when she had time. She also confirmed that the 4th respondent was not in the office but if Ms de Saude wished to speak to him she should call him on his mobile number. Ms de Saude confirmed the number with her to ensure that she had the correct number, which she did. Ms de Saude then called the 4th respondent on his mobile number but his phone was turned off and the call went directly to his voice mail. His voice mail instructed that a voice message should not be left and that an sms should be sent to which he would respond. Ms de Saude then sent the sms, briefly explaining that the 1st applicant was not receiving any response to its correspondence whatsoever, and requesting that he kindly respond. No response was received. [36] On the same day at 14h10 Ms de Saude received an email from the 4th respondent's email address, which email was forwarded to the 3rd respondent and copied to Ms Reyneke. The email advised him (the 3rd respondent) to respond to Eisenberg's previous emails which had been resent to the 3rd respondent on 6th January 2011. Again no response was received. [37] As at 3 February 2011 (the date upon which Ms de Saude deposed to her affidavit) no feedback had been received from either the 3rd or the 4th respondents. Furthermore the 1st applicant had yet to receive a single 'bridging permit' for any of its clients. [38] The respondents' answer to Ms de Saude's allegations is simply a bare denial. They provide no detail whatsoever as to why her allegations are incorrect. [39] On 20 January 2011 the applicants wrote to the respondents warning of court action if they did not take meaningful steps to address the undetermined applications. Again no response was received and the present application was launched on 4 February 2011 for hearing on 10 March 2011. At that stage 425 applications (excluding those of the 2nd to 4th applicants) spanning the period December 2009 to January 2011 had not been determined by the respondents. [40] On 21 February 2011 the state attorney wrote to the applicants on behalf of the respondents. The gist of this letter was that of the 425 applications, 113 had now been determined, 154 were missing completely and 158 although 'reflected as captured' could also not be located. [41] The applicants responded by pointing out certain errors in the respondents' records. These included that 2 names on the respondents' list did not form part of the undetermined applications, some of the applications listed as 'lost' had actually now been finalised, and the number of applications with queries listed by the respondents did not match the number of previous queries. The applicants proposed that the respondents attend at the 1st applicant's offices to copy all missing documents at their (the respondents') expense. The litigation would be suspended while attempts were made to resolve the matter. Thereafter various officials came to the offices of the first applicant on 3 and 4 March 2011 to copy the missing applications. [42] The respondents then undertook to determine all outstanding applications by 10 March 2011. However this did not happen because instead of comparing 'appleswith apples' the respondents produced a further 3 separate lists. In short these allcontradicted each other in numerous material respects and in any event containedmany inaccuracies. The respondents have subsequently abandoned any reliance onthese lists. [43] It is at this point that things become a little murky. On 12 April 2011 Eisenberg sent an updated list to the state attorney. Although the respondents make much of Eisenberg's failure to refer to this list in his supplementary affidavit deposed to on 11 May 2011 and seek to draw an adverse inference therefrom, Eisenberg is candidthat he had simply overlooked this email. This is not surprising when regard is had tothe voluminous amount of correspondence and lists which had been emailed over andover again to the various respondents. In any event that is not really the issue. What isin issue is that somehow handwritten annotations found their way onto that 12 April 2011 list. These annotations reflect which applications were still pending, which had been rejected, and which had been approved. And an unknown official or officials in the employ of the respondents then dealt with that list on the basis of those handwritten annotations, concluding that there were now only 13 applications which still needed to be determined. According to the respondents of those 13 only 6 presently remain undetermined. [44] Eisenberg is adamant that the handwriting on the list is neither his nor that of any of his staff members. The respondents are equally adamant that the handwriting is not theirs or that of anyone in their employ. Eisenberg's covering email to that list merely reads that: 'Dear Mr Mhlana Thanks for your call today. Please find attached hereto a list of what remains outstanding for Eisenberg & Associates from the original list of this law firm in our founding papers. Let's find a way of resolving this case once and for all. With my kind regards' [45] The applicants point out that of the 13 applications which the respondents concluded still need to be determined, they are simply wrong in respect of the following clients: 1. Gin Hua Yan: the respondents claim in their affidavit that this application was not received by them nor was a copy provided by the 1st applicant. However, according to the very list upon which they now rely, their own records reflect that this client's application was received by them on 5 February 2010 and that it was still pending; 2. Awny Monir Sadek Samy: the respondents aver that this application was finalised and sent to their Cape Town regional office but that by 22 July 2011 it had not been collected by the 1st applicant. The 1st applicant points out that as can clearly be seen from the endorsement stamp it collected this permit on 10 June 2011; 3. Olga Shevchenko: again the respondents allege that this application was not received from either the Cape Town regional office or from the 1st applicant. However the list upon which they rely reflects that the application was received by them on 25 May 2010 and was still pending; 4. Margarita Murma: the respondents allege that this client's application was not received from the 1st applicant. However, again, according to the list upon which the respondents rely the application was received by them on 28 July 2010 and was still pending; 5. Anastasia Akatyeva: the respondents allege that this client's application, although approved, had not yet been collected by the 1st applicant on 16 September 2011. However according to the list upon which the respondents rely, it was collected by 1st applicant on 2 June 2011; 6. Yan Qing Chen: the respondents claim that they have no record of this client's application and that it has thus not been received from the 1st applicant. However according to the list upon which they rely it was received by them on 1 September 2010 and was still pending (it was in fact finalised on 29 June 2011); 7. Chaya Mushka Cohen: the respondents allege that this client's application was not on the 1st applicant's list and that the 1st applicant has not even provided a copy thereof. However, according to the list upon which the respondents rely they responded to this application on 26 November 2010 and it was still pending; and 8. Halyna Yila: the respondents claim that this client's application was rejected because the client did not have a valid passport and that it is 'now on appeal'. However, according to the list upon which the respondents rely, it has always been an appeal and the appeal was lodged in June 2010. The 1st applicant points out that in any event there was no requirement for this client to have a valid passport because she is an asylum seeker. [46] The applicants accordingly point out that of the 13 applications determined as 'pending' by the respondents, 8 (i.e. over half) contain errors. In addition the list refers to one 'Lars Peter Leyendecker'. However in the respondents' affidavit they make no mention of this person but instead refer to a Lena Myemnkiere Papy who is not even included on the list. [47] In addition in their affidavit the respondents first claim that with regard to the 1st applicant's clients 'The remaining applications, save for one, are not outstanding, as appears from the following...' but in the very next paragraph they claim that 'There are thus no outstanding applications for Eisenberg & Associates'. [48] Similar problems occur with the 5th applicant's clients. [49] The applicants claim that compounding the confusion at the DHA is the fact that the applicants have been receiving yet more, different lists from the Cape Town branch of the Department. These lists are typically supplied by a Ms Abrahams. Two of these lists are referred to in the papers, one dated 1 August 2011 and the other 19 October 2011. Neither of these lists even approximate the list relied upon by the respondents. Notably, the list of 19 October 2011 - less than a month prior to the hearing of this matter - lists 73 applications which are either pending or of which there is no trace. [50] In their affidavit the respondents' Mr Mamabolo (who is the 3rd respondent) deals with the review regarding compliance with departmental directives and procedures conducted in the DHA's Cape Town and other regional offices in the Western Cape, outlines the steps taken by the DHA in setting up a hub in Pretoria for the central adjudication of applications for permits, and sets out what has apparently been achieved as a result of these steps. [51] According to the 3rd respondent in May 2010 a Mr Mellet {'Mellet), was appointed as the Director of Immigration Services for the Western Cape. He was instructed by the Minister to oversee a review of compliance with standard operating procedures of the DHA by its Cape Town regional office and other regional offices in the Western Cape. [52] The review commenced on 3 May 2010. It is an ongoing process to ensure that officials comply with departmental procedures and directives. The investigation revealed that there has been large scale non-compliance with standard operating procedures. [53] The non-compliance with departmental procedures and directives includes the following: 1. It appears that there has been collusion between immigration practitioners and officials of the DHA in relation to the adjudication of applications; irregular engagement between practitioners and officials regarding pending applications; and the submission of applications without the requisite supporting documentation. 2. Certain applications to the DHA were being considered and decided 'by negotiation'. In other words, immigration practitioners and members of the public were influencing the outcome of applications after these had been submitted to the DHA. 3. The knock-on effect of these practices had adversely impacted on the management of the Cape Town office to such an extent that some immigration practitioners were wielding undue influence over departmental officials and procedures. They were gaining an unfair advantage over the general public. This, in turn, also adversely affected service delivery. 4. Immigration officials complained of abuse and intimidation by syndicates, individuals and in particular, immigration practitioners. 5. Departmental policies and directives were ignored. For example, in 2010 a corporate permit and more than 70 corporate worker

authorisation certificates for so-called 'exotic dancers' had been illegally issued to a Cape Town club, in flagrant disregard of Departmental Directive No 22 of 2007 ('the 2007 directive) that exotic dancing is not regarded as a scarce skill. 6. The 2007 directive was similarly ignored when the DHA's Durban regional office issued corporate permits for exotic dancers to 5 nightclubs in Durban. In addition, a member of one of the nightclubs had in his possession 2 new face value corporate certificate books which could be used to issue certificates to corporate workers, and which nobody is allowed to possess. The official involved in the issue of the corporate permit to the Cape Town club, who was the former Assistant Director and Head of the Permit Office in Cape Town, was immediately suspended and disciplinary proceedings were brought against him. After a disciplinary enquiry before an independent chairperson he was dismissed in September 2010. He noted an appeal against his dismissal. In November 2010 his appeal was dismissed. Another senior official who was also involved in the issuance of a corporate permit to the same Cape Town club, who was the Director: Immigration Services, resigned in March 2011 before disciplinary proceedings against him could be continued. Steps are being taken to bring disciplinary proceedings against the officials involved in the issuance of corporate permits in KwaZulu-Natal. 7. Moreover, in terms of the Departmental Directive of Corporate Permits issued on 29 October 2008, a corporate permit may not be issued without a recommendation by the Department of Trade and Industry ('DTI') as contemplated by s 21(2) of the Act. In certain of the nightclub applications there was no recommendation by the DTI. [54] As a result of the many irregularities that emerged in the aforesaid review the Anti-Corruption Unit of the DHA commenced a forensic investigation in co-operation with the Directorate for Priority Crimes Investigation ('the Hawks). This investigation had not yet been completed when Mr Mamabolo deposed to his affidavit on 7 October 2011. The investigation includes an analysis of fraudulent documentation submitted to the DHA; fraudulent permits issued; and irregularities in relation to

corporate permits and worker authorisation certificates. [55] According to Mr Mamabolo a number of actions were taken to address the specific problems found: 1. Officials in the DHA were informed about violations of standard operating procedures and that disciplinary action would be taken against those who had breached procedures and directives. 2. Immigration practitioners were advised to respect and follow procedures and that irregular practices would not be tolerated. 3. Officials were instructed not to accept poor or incomplete applications. 4. Measures were put in place to improve administrative procedures. 5. The adjudication of applications was moved to a centralised adjudication hub in Pretoria to avoid the violation of departmental procedures and directives. [56] As to the review in the Western Cape, Mr Mamabolo referred to the affidavit of Mellet which he claimed was filed together with his affidavit. However no such affidavit has been filed. The applicants confirm that they have never seen such an affidavit. [57] Mr Mamabolo states further that with effect from May 2010 the determination of all applications for permits was centralised at the DHA's central adjudication hub in Pretoria. In practice, applications are submitted to the DHA's regional offices in the

various provinces. The applications are then sent on to the central adjudication hub. This means that all applications submitted across the country are adjudicated at the hub. In Mr Mamabolo's words 'Needless to say, this was a daunting project which brought with it its own challenges and difficulties as regards human resources; equipment; and logistics'. Mr Mamabolo lists the difficulties encountered as follows. [58] The task of setting up and running a hub was rendered more difficult by the fact that the DHA, and more specifically its Chief Directorate: Permitting, renders extensive services in relation to permits. These include the issuance of permanent residence permits, temporary residence permits, waivers in relation to permanent and temporary residence applications, and exemptions in terms of the Act. [59] In addition, the DHA is also responsible for appeals to the Director-General and the Minister under the Act, applications for proof of permanent residence, withdrawals of permits, extensions of temporary residence permits and the Large Account Unit. This unit is responsible for the adjudication of corporate permits where large companies are bringing scarce skills into the country. The clients are selected through a specified list of criteria published in the Government Gazette. These applications are dealt with by a selected team and the turnaround time is 15 days. There are 4 categories of direct permanent residence permits under s 26 of the Act, namely worker; spouse; dependent child; and child of a South African citizen. There are 7 categories of permanent residence permits 'on other grounds' under s 27 of the Act, namely worker; extraordinary skills; own business; refugee; retired person; financially independent and relative. There are 12 categories of temporary residence permits, namely visitor; study; treaty; own business; crew; medical treatment; relative; worker; retired; corporate; exchange; and asylum transit. [60] In accordance with the decision to centralise the adjudication of all applications for permits in Pretoria, all regional offices across the country were instructed to forward pending and new applications to that hub, together with face value documents. [61] At that stage already, i.e. May 2010, there was already a large backlog of applications in regional offices. In order to deal with this a number of officials experienced in deciding applications for permits were seconded to the hub in Pretoria. A total of 11 adjudicators and additional administrative staff were seconded to the DHA's Head Office at the end of May 2010. [62] By November 2010 there were an estimated 13 000 applications for permanent residence permits. Of these 6000 were within the turnaround period of 6 months. There were about 7000 applications older than 6 months at the DHA's Head Office and regional offices. As regards temporary residence permits there were about 11 900 applications at Head Office older than the turnaround time of 30 days; and an estimated total of 9 000 at regional offices. In addition there was an estimated backlog of 30 000 applications in respect of documentation for Zimbabweans. (This is a total of 54 900 applications.) [63] It became apparent that even with the increased numbers of adjudicators and administrative staff, the task of deciding applications would require even more adjudicators and staff; and additional logistical requirements such as a dedicated receipting unit, an in-house courier service and effective communication between the hub and regional offices. [64] Mr Mamabolo also states that in order to deal with the situation and more specifically the backlog in the adjudication of permits in November 2010, the Minister and the Director-General approved the Permit Stabilisation Project in terms of which the following recommendations would be implemented: 1. One central postal receipt unit to receive and dispatch all applications from and to regional offices would be created. 2. Separate adjudication hubs to deal with the backlog, normal applications for permits, and the Zimbabwean Project would be created. This would enable the DHA to monitor their performance separately and to develop appropriate interventions. 3. A daily shift system would be implemented to improve hub operations. The first shift would be from 06h00 to 14h00 and the second from 14h00 to 22h00 on weekdays. A Saturday shift would be from 08h00 until 13h00. 4. At least two Permit Quality Inspectors would be appointed in regional offices. They would be responsible for the receipt of applications and their dispatch to the courier service, XPS. They would also be responsible to ensure that officials who work in the front office are accountable for applications. 5. The process of receiving applications in the front office would be simplified and standardised. This would improve the quality of assessment of applications and increase capacity to assess greater volumes. A checklist for the receipt and assessment of applications would be implemented. 6. The service level agreement with XPS would be reviewed and steps would be taken to improve their daily operations. This in turn would improve daily reconciliation of applications collected from and delivered to Head Office. 7. Statistics and performance data management would be improved. 8. Telephone conferences would be held on a daily basis between the various offices in the DHA with effect from 1 December 2010. 9. The extensions of temporary residence permits would be processed separately with an improved turnaround time. It was recommended that extensions be finalised within 5 working days given their low risk profile. (It is noted however that the 5 day turnaround time does not accord with the media statement of the Department of 25 November 2010 when the public was informed that the turnaround time would be 48 hours.) [65] The Permanent Stabilisation Project was implemented in the first week of December 2010. [66] Mr Mamabolo then refers to the 'major highlights' achieved during the period 6 December 2010 to 6 January 2011. These included the appointment of an additional 35 adjudicators and 160 contract workers for sorting and filing, postal receipt and dispatch; internal couriers; and the establishment of the '48 hour extension hub'. [67] According to Mr Mamabolo the following challenges were encountered in the process of implementing the Permit Stabilisation Project. There was a need to strengthen the functioning of the DHA in relation to waivers and appeals. There was a need for more office space due to the high volume of applications that were being processed; the DHA ran short of the necessary forms, obtainable only from the government printer. The DHA also experienced problems with the telephone conference system and equipment maintenance. By 7 January 2011 further steps were identified which needed to be taken. These included an amnesty to all permitting officers to dispatch all mainstream permitting applications to Head Office by 31 January 2011; that a permit review workshop would be conducted to focus on process reviews and improvement and that other related aspects would be reviewed towards mid-March 2011. [68] As at October 2011 Mr Mamabolo claimed that, whilst it must be acknowledged that there were challenges in the permitting system 'before its centralisation, which created a backlog of approximately 54 000 applications' the DHA has taken concrete steps to ensure that the permitting system makes it easy for business and critically skilled people, students and tourists to be issued with relevant permits timeously. He claims that the applicants' contention that the respondents have not complied with their duties under the Constitution and the Act is unfounded. He says that 'They pay no regard to the challenges which the Department faced in implementing the new centralised system; what has been achieved with limited resources; and the need for central regulation and control of the permitting system'. [69] This is all good and well. However for purposes of adjudicating the present matter the following is apposite. Firstly, there is no allegation by the respondents that the immigration practitioners whom they accuse of misconduct include either of the applicants. Secondly, it is difficult to understand when, in the knowledge that the DHA would be faced with the problems outlined by Mr Mamabolo in his affidavit, they nonetheless issued the media statements of 18 and 25 November 2010. Any reasonable member of the public reading those statements would be justified in concluding that: (a) the DHA had been provided with sufficient resources and expertise 'to ensure foreigners can contribute meaningfully to the development of our country without any obstacles through the timeous issuance of permits to all concerned'; and (b) 'all foreigners seeking extensions to their individual permits....[shall] be granted such extensions within 48 hours...By granting extensions within 48 hours, the applicants will be able to travel, work, study and conduct business as stated in the initial terms and conditions of the permit they seek to extend'. Thirdly, the sorry tale of utter inefficiency over the period December 2010 to January 2011 relayed by Ms de Saude occurred within the first 2 months after the release of media statements expressly to the contrary. And of course the fact of the matter is that the DHA simply did not fulfil its public promises. It is not disputed by the respondents that none of the applications in the present matter were ever attended to within the promised 48 hour turnaround time. In fact on Mr Mamabolo's own version it was never intended by the DHA that there would be a turnaround time of 48 hours, but one of 5 working days. On the applicants' version, as at 3 November 2011, of the 425 undetermined applications, there were 115 permit extension applications and/or review applications and/or administrative correction applications which had still not been finalised. In terms of a supplementary note provided by the applicants on 18 November 2011 there are still 105 such applications. Evaluation [70] Before turning to consider whether the relief sought by the applicants is competent it is necessary to apply the wel^known Plascon-Evans rule (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H-635A). Accordingly this matter must be decided on the respondents' version unless I am satisfied as to the inherent credibility of the applicants' version, or that 'the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers'. [71] In this regard it simply makes no sense that Eisenberg would have sent a list to the respondents on 12 April 2011 which contained handwritten annotations that were, on his own version, factually incorrect. The applicants' records are meticulous compared to those of the respondents. The more likely probability is that Eisenberg's list landed up in the hands of one of the many officials in the respondents' employ. That official then attempted to deal with the outstanding applications based on incorrect or inadequate records and made the handwritten annotations thereon. If this were not the case then Ms Abrahams of the Cape Town regional office would not have been able, based on the same records - which must surely be kept on a central database - to produce two further and still inaccurate lists thereafter. [72] Furthermore I have to consider the facts which are either admitted or are not seriously disputed by the respondents, and which have been set out in some detail hereinabove. [73] Having given careful consideration to the respective versions of the applicants and the respondents as set out in the papers and summarised above, the only reasonable conclusion which I can reach is that the applicants' version is inherently credible and the respondents' version is untenable to the extent that it must be rejected. Despite the respondents' protestations to the contrary the inescapable inference is that, irrespective of whether they have the best will in the world, they have dealt with the applications of the applicants' various clients in a manner which can only be described as 'administrative bungling'. I thus find that whether the relief sought by the applicants is competent must be determined on their version. Whether the relief sought is competent [74] As I have mentioned above the respondents are the officials in the DHA who, generally speaking, administer the immigration regime in South Africa in terms of the Act and regulations pursuant thereto. One of the most important components of this regime is the lawful and efficient provision of temporary residence permits to foreigners who wish, for whatever reason, to enter and sojourn in South Africa. [75] For a foreigner in South Africa these permits are the single most important document that they can possess. It is the basis of their legal existence in this country. Every aspect of their lives - the ability to travel freely (s 21 of the Constitution); the ability to work and put food on the table for their families (a component of the right to dignity in s 10 of the Constitution, see Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) at 339B-C and F-G, 340G); the ability to keep their children in school (ss 28 and 29 of the Constitution); and the basic

right to liberty (s 21(1) of the Constitution) - is dependent on the physical possession of a valid permit. [76] The acquisition of a valid permit is the primary pre-requisite for any foreigner in South Africa and is thus a major stepping-stone to bringing tourists, skills, foreign investment and employment to this country. This much is acknowledged by the respondents in their media statement of 18 November 2010. [77] Section 195 of the Constitution places an obligation on public administration not only to adhere to a high standard of professional ethics; but also that public administration must be accountable and transparent by providing the public with timely, accessible and accurate information and responding to the needs of people. [78] Section 33(1) of the Constitution provides that 'Everyone has the right to administrative action that is lawful, reasonable and procedurally fair'. The respondents are bound by the Constitution to adhere to s 33(1) thereof. [79] The applicants submit that the unreasonable delay of the undetermined applications constitutes a violation of the law and the Constitution. This violation gives rise to two independent causes of action: one based on judicial review and the other on a mandatory interdict. The effect of the relief sought in respect of these two independent causes of action is the same. Judicial review [80] The applicants submit that their clients' constitutional rights have been violated by the unreasonable delay of the respondents. Accordingly, the principles applicable include that: (a) the Constitution is the supreme law of South Africa; law or conduct inconsistent with it is invalid to the extent of the inconsistency (s 2 of the Constitution); (b) when interpreting any legislation and when developing the common law every court must promote the spirit, purport and values contained in the Bill of Rights (s 39(2) thereof); and (c) all constitutional obligations must be performed diligently and without delay (s 237 thereof). [81] Being deprived of a permit due to the respondents' conduct infringes upon the variety of constitutional rights referred to above. The infringement of each of these rights flows from the same source: that without a permit a foreigner in South Africa becomes a 'legal ghost'. He or she is denied recognition of his or valid existence in South Africa, is constantly at risk of arrest, detention and deportation;

may not move freely around South Africa or in and out of South Africa; and cannot be employed and so cannot earn a living with the attendant disadvantages of lack of access to health care, education and the like. [82] In considering the applicants' contentions it is appropriate to have regard to the sentiments expressed by the Constitutional Court in S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC) at 236e-237c. Although that case considered the constitutional rights of an accused person there is no reason why the principles set out therein should not apply equally here. The court said 'For the State to respect, protect, promote and fulfil the rights in the Bill of Rights, resources are required. The same applies to the State's obligation to assist and protect the courts, to ensure their independence, impartiality, dignity, accessibility and effectiveness. The right to a fair trial requires considerable resources in order to provide for buildings with court rooms, offices and libraries, recording facilities and security measures and for adequately trained and salaried judicial officers, prosecutors, interpreters and administrative staff. Few countries in the world have unlimited or even sufficient resources to meet all their socio­political and economic needs. In view of South Africa's history and present attempts at transformation and the eradication of poverty, inequality and other social evils, resources would obviously not always be adequate. However, as far as upholding fundamental rights and the other imperatives of the Constitution is concerned, we must guard against popularising a lame acceptance that things do not work as they ought to, and that one should simply get used to it. Naturally the relevant authorities must attempt to see to it that facilities are provided as far as possible. Furthermore, all those concerned with and involved in the administration of justice -including administrative officials, Judges, magistrates, assessors and prosecutors must purposefully take all reasonable steps to ensure maximum compliance with constitutional obligations, even under difficult circumstances. Responsible, careful and creative measures, borne out of a consciousness of the values and requirements of our Constitution, could go a long way to avoid undesirable situations... To compromise the right to a fair trial may in principle be as dangerous as to cancel or postpone democratic elections because of a lack of facilities or resources.' [83] The framework legislation for judicial review is the Promotion of Administrative Justice Act No 3 of 2000 ('PAJA). [84] Section 6 of PAJA sets out the relevant ground of review as follows: '(2) A court or tribunal has the power to judicially review an administrative action if- ….......... (g) The action concerned consists of a failure to take a decision; …........... (3) If any person relies upon the ground of review referred to in section 2(g), he or she may in respect of a failure to take a decision, where - (a) (i) an adjudicator has a duty to take a decision; (ii) there is no law that prescribes a period within which the administrator is required to take that decision; and (iii) the administrator has failed to take that decision; institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision.' [85] The applicants have set out why 30 days is a reasonable deadline within which a temporary residence permit application should be finalised. The respondents concede that this is so. The respondents are clearly under a duty to take decisions on the undetermined applications. It is common sense that in the absence of such a duty, the Act would cease to have meaning. The respondents could, simply by refusing to take decisions, reduce the Act to an arbitrary and ineffective piece of legislation. This goes directly against the purpose of the Act itself as well as the principle of the rule of law enshrined in the Constitution. The respondents have simply failed to take the decisions required of them in a lawful, reasonable and procedurally fair manner. [86] The respondents argue that this relief sought by the applicants must fail on two grounds. The first has already been dealt with, namely that on the facts the respondents' version must be favoured over the applicants' version. The second, which is inextricably linked to the first, is that since on the respondents' version only 6 applications have not been determined, this court should exercise its discretion to withhold granting the relief sought in accordance with the trite principle that in proceedings for judicial review, a court has a discretion whether to grant or withhold the remedy (Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) 246C-D). However since I have found that the applicants' version is inherently credible and that the respondents' version is clearly untenable, it follows that I find that there are still 105 applications which have not yet been determined by the

respondents. That is a significant amount. This also means that the lives of 105 foreigners (excluding their dependents who are also obviously affected) hang in the balance until the respondents get their house in order. [87] In these circumstances the applicants are entitled to the relief sought by them under s 6 of PAJA. [88] The last of the first-time applications in the present matter was submitted in January 2011 (i.e. 10 months ago). Some applications have remained undetermined since February 2010 (i.e. 19 months ago). The respondents themselves concede that the turnaround time envisaged in the Act is 30 days (although they themselves seem to believe that a turnaround time of somewhere between 48 hours and 5 working days would be reasonable, at least in respect of applications for extensions of temporary residence permits). I am satisfied that it would be just and equitable to order the respondents, in terms of s 8(1 )(a)(ii) of PAJA, to determine within 30 working days from date of this order, the undetermined temporary residence permit applications and/or extension applications and/or review applications and/or administrative correction applications. It is also just and equitable to order that in the event that any of the aforesaid undetermined applications have been misplaced by the respondents, they shall take steps, at their own expense, to copy the misplaced applications from the offices of the applicants in order to give effect to the aforegoing. [89] The consideration of the alternative relief sought by the applicants by way of a mandatory interdict thus falls away. The relief sought by the applicants that the respondents must determine any subsequent review and/or administrative correction applications which might arise from determination of the undetermined applications [90] The applicants argue that it would be appropriate to grant this 'consequential' relief since it will nonetheless pertain to their presently affected clients. [91] The respondents argue that this relief is not competent for the following reasons. Firstly, it is a trite principle that courts of law exist for the settlement of concrete controversies and actual infringement of rights, and not abstract questions. Secondly, this court cannot make an order which is not capable of being enforced. [92] As to the determination of 'abstract questions' the Appellate Division in Geldenhuys and Neethling v Beauthin 1918 AD 426 at 441 said that: 'No doubt there is something to be said in favour of sanctioning the issue of declaratory orders even where there has been no infringement of rights. But on the other hand it would be very difficult to define the limits within which that jurisdiction should be confined. And its unregulated exercise would lead to great uncertainty of practice. After all, Courts of Law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise about differing contentions, however important. And I think we shall do well to adhere to the principle laid down by a long line of South African decisions, namely that a declaratory order cannot be claimed merely because the rights of the claimant have been disputed, but that such a claim must be founded upon an actual infringement.' [93] Most recently, the Constitutional Court has held that whether or not administrative action has been taken which would make PAJA applicable (as in the case of prospective internal reviews under the Act) cannot be determined in the abstract. Regard must always be had to the facts of each case. This was set out in Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC) at 341B: PAJA defines administrative action as a decision or failure to take a decision that adversely affects the rights of any person, which has a direct, external legal effect. This includes action that has the capacity to affect legal rights. Whether or not administrative action, which would make PAJA applicable, has been taken cannot be determined in the abstract. Regard must always be had to the facts of each case.' [See also President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at 67G-68B.] [94] It seems to me that to grant the consequential relief sought by the applicants would be tantamount to the determination of issues which may or may not arise. I would thus be granting relief in the abstract. The applicants really seek to protect themselves (or rather their affected clients) from the possibility that the respondents' pattern of tardiness will continue. But this does not amount to a concrete controversy or actual infringement of rights as set out in the Geldenhuys case referred to above. [95] And in any event it should be borne in mind that the applicants themselves might, due to administrative or other error, submit incomplete or erroneous applications. By making the order in the terms sought by the applicants, I could potentially be opening the door to a flood of contempt applications against the respondents. [96] Linked to this is the principle that courts can only grant orders which can be enforced. As said by the Appellant Division in Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) 720D and G: 'It is trite that a court will not engage in the futile exercise of making an order which cannot be carried out.. .the same principle must apply when the question is one not of obeying the law but of complying with an order of court.' [97] In the circumstances this part of the relief sought by the applicants must fail. Costs [98] During the course of argument the respondents successfully applied to strike out substantial portions of the applicants' replying papers. The entire affidavit of Mr Isaacson (including all annexures thereto) was struck out and I agree with the submission of the respondents' counsel that approximately 75% of the replying affidavit of Eisenberg (including annexures) was similarly struck out. [99] As to the remaining costs and without adopting an overly technical approach, I believe that it would be just and equitable to order the respondents to effect payment of 80% of the applicants' costs. This is because about 80% of the argument and the papers not struck out with costs related to the relief in which the applicants have been successful. Conclusion [100] In the result I make the following order: '1. The respondents' failure to decide, within a reasonable time, upon the temporary permit applications and/or review applications and/or administrative correction applications of the persons named in the list annexed marked "X" [subcategories 'A' to 'F'] is hereby reviewed and set aside. 2. The respondents shall within 30 (thirty) working days from date of this order determine the temporary residence permit applications and/or review applications and/or administrative correction applications of the persons named in the list annexed marked "X"

[subcategories 'A' to 'F']. For this purpose 'determine' shall mean decide, deliver and immediately make available to the applicants the 'determination' in each instance upon its arrival at the Cape Town office of the first respondent. 3. In the event that any of the undetermined applications have been misplaced the respondents are directed to take steps, at their own expense to copy same from the offices of the applicants in order to give effect to the terms of this order. 4. The balance of the relief sought by the applicants is dismissed. 5. The respondents shall effect payment of 80% of the applicants' party and party costs, save for the costs relating to the affidavit of Mr Isaacson (which has been struck out) and 75% of the replying affidavit (including annexures) of Mr Eisenberg (which has similarly been struck out). J I CLOETE

Heard: 16 November 2011

Court: Acting Judge J I Cloete

Delivered: 23 November 2011

JUDGMENT

CLOETE AJ: Introduction:

[1] The 1st and 5th applicants who are immigration practitioners ('the applicants) seek certain amended procedural relief from the respondents. The relief sought by the

2nd to 4th applicants (who were affected individuals) has fallen away. The nature of the relief sought is to compel the respondents to: (a) determine certain outstanding temporary residence permit applications and/or review applications and/or administrative correction applications within 30 days; (b) determine any subsequent review and/or administrative correction applications which might arise from applications relating to the outstanding temporary residence permit applications within 6 weeks of submission thereof; and (c) obtain, at the respondents' expense, any applications misplaced by them in order to give effect to the aforegoing.

[2] The relief is couched in the form of judicial review, alternatively for a mandatory interdict. For purposes of the relief sought 'determine' means to decide, deliver and immediately make available to the applicants the 'determination' in each instance upon its arrival at the Cape Town office of the 1st respondent.

[3] Although the applicants seek relief against all 5 respondents, it is essentially directed at the 1st respondent (who is responsible for the administration of the 3rd to 5th respondents) and the 2nd respondent (who is the political functionary responsible for the Department of Home Affairs, or 'DHA).

[4] The applicants' central complaint relates to the failure of the respondents - who are government officials generally in charge of immigration-related affairs in South Africa - to determine temporary residence permit applications, review applications and administrative correction applications within a reasonable time.

[5] The applicants' attack is not directed at any deliberate misrepresentations on the part of the respondents, but at a consistent pattern of administrative bungling and a failure to comply with promised deadlines.

[6] The respondents deny that the relief sought by the applicants is competent and further deny any administrative bungling on their part. They seek the dismissal of the application.

Background

[7] There is a plethora of detail in the papers, but the essential facts which are material to the determination of the matter appear to be the following.

[8] The backlog of applications which is at the heart of this case began in May 2010. Initially the applicants did not make anything of the delay as they respected the burdens placed on the respondents' time and ultimately expected the applications which they had made on behalf of their clients to receive proper treatment.

[9] Regulation 7(6) of the regulations pertaining to the Immigration Act 13 of 2002 ('the Act) reads as follows:

'(6) A foreigner who is in the Republic and applies for a change of status or conditions relating to his or her temporary residence permit, or for an extension of the period for which the permit was issued, shall submit his or her application at least 30 days prior to the date of expiry of that permit...'

[10] The regulation thus envisages that it will not take longer than 30 days to finalise an application of this nature - it would otherwise not be required of an applicant for such an application to be filed 'at least 30 days' prior to the expiry of a current permit. An applicant may thus file such an application on the 31st day prior to the expiry of a current permit and reasonably expect it to be dealt with by the date of expiry thereof. This is not seriously disputed by the respondents.

[11] By August 2010-2 months after the 30 day 'deadline' the applicants began making enquiries about the status of the applications submitted. These enquiries were in the form of a number

of letters addressed and telephone calls made to a variety of departmental officials including the 4th and 5th respondents. Other than various promises made by certain of these officials that the applications would receive attention, no other response was received by the applicants until 19 November 2010 by way of an email addressed by the 4th respondent to, inter alia, the 5th respondent and copied to them, in which they were advised that:

'The applications mentioned in Mr Eisenberg's letter was [sic] mostly submitted well before we started with the centralisation of adjudication. Some applications on the [Track and Trace Online System] reflect that the applications were only received and nothing further. Please investigate and provide me with an update.'

[12] At around the same time (on 18 and 25 November 2010) the DHA released media statements which reflected the apparent seriousness with which they regarded the problems in their permit section. According to these media statements substantial resources were being allocated to deal with the backlog problem and all applications for extensions of temporary residence permits would be finalised within 48 hours of submission.

[13] The media statement of 18 November 2010 contains the following:

'In response to this impassioned plea from Minister Dlamini Zuma as well as the huge cries for help by the affected sections, the following new measures have now been put in place to deliver faster and Quality service delivery to businesses, foreign workers and students:

1. Appointed a new Acting Chief Director-Permitting-Jacob Mamabolo, based at Headquarters in Pretoria to oversee the new process. His contact numbers are as follows: (cell) 082 884 1868, (Tel) 012 810 7322, E-mail: Jacob.mamabolo(S).dha.gov.za

2. Mamabolo will lead a dedicated team of immigration officials, who shall receive, adjudicate and immediately issue such permits from Headquarters.

3. All permits - study, work or business permits - shall from now onwards be adjudicated and issued from our Headquarters in Waltloo, Pretoria'

…..........

The department will do everything in its power to respond to the Ministerial directive in an attempt to make everything possible to ensure foreigners can contribute meaningfully to the development of our country without any obstacles through the timeous issuance of permits to all concerned.' (Emphasis added.)

And the second media statement of 25 November 2010 the following

'Pretoria - Minister of Home Affairs, Dr. Nkosazana Dlamini Zuma has issued a Departmental directive that all foreigners seeking extensions to their individual permits in terms of the provisions of the Immigration Act, 2002 be granted such extensions within 48 hours. This includes all permits excluding the Intra-Company Company Transfer Permit.

[The current delays in processing have] impacted negatively on the lives of applicants who met the requirements of the Act by applying within the reguired 30 day period.

By granting extensions within 48 hours, the applicants will be able to travel, work, study and conduct business as stated in the initial terms and conditions of the permit they seek to extend.

Minister Dlamini Zuma's directive is a consequence of a thorough analysis that identified various logjams which previously acted as impediments in the Department's quest to expeditiously address applications for permit extensions.

The directive by the Minister follows various measures announced last week to centralise the issuing and extension of all permits. It is anticipated that the additional measures being announced today will provide further impetus to Government's drive towards accelerating quality service delivery to all citizens and foreigners alike....

To underpin Minister Dlamini Zuma's directive that extensions of all applicable permits be resolved within 48 hours, the Department has now put in place the following measures:

A dedicated email facility, permit.extension@dha.gov .za, where foreigners can contact the Department to verify the status of their applications for an extension. Applications will still be received in the Regional Offices.

The creation of a dedicated fax line. 086 532 6320, to submit proof of application to expedite the issuing of permits.

The Department has also established a dedicated call centre where dedicated staff will assist foreigners seeking assistance. The following are the dedicated contact numbers for the call centre:

082 888 8328

082 809 5307

082 801 8766

079 519 3105

This new service will be in operation from Monday 30 November 2010 and will be operational during 07h00-16h00.

We are confident that these measures will make a significant contribution towards enhancing the Department's approach to the speedy extension or the issuing of new permits.' (Emphasis added.)

[14] These media statements notwithstanding and despite further correspondence by the applicants to the respondents, the delivery of copies of all outstanding applications to the 3rd and 4th respondents at their request, and verbal promises made to the 1st applicant, not a single application was determined within 48 hours, or for that matter within a week or a month thereafter, by the respondents.

[15] An affidavit filed by Ms de Saude, the 1st applicant's candidate attorney, reveals the following.

[16] On 2 December 2010 the 4 respondent returned the telephone call of the 1 applicant's Mr Eisenberg ('Eisenberg) and instructed Eisenberg to transmit to him directly copies of the acknowledgment of receipts, cover letters, passport title pages and last temporary residence permits of each applicant ('the documents). These were not to be sent to the general email address permit.extension(g)dha.gov.za which had been set up in terms of the 2nd respondent's new adjudication process, but to the 4th respondent's email address.

[17] On the same day Ms de Saude called one of the contact numbers (+27828888328) published on the website of the DHA which number was also set up as part of the 2nd respondent's new adjudication process. She spoke with an 'Anton' who confirmed that within 48 hours of receipt of the documents, as a result of this new adjudication process, all outstanding

applications would be finalised.

[18] On 3 December 2010 Ms de Saude transmitted to the 4th respondent the documents for 54 pending extension/renewal applications for the 1st applicant's clients.

[19] On the same day Ms de Saude received two emails from the 4th respondent's email address, in which the 3rd respondent was copied. The first email forwarded Ms de Saude's previous email in which the documents for the 54 extension/renewal applications were attached, to the general email address. Ms de Saude then received an email from Ms Elzabe Fisher, the personal assistant to the 4th respondent, advising her that the documents and any queries relating to outstanding extension/renewal applications should be sent to the general email address. This was in direct contradiction to the 4th respondent's instruction a day earlier.

[20] On 8 December 2010 and as a result of a telephone conversation which Eisenberg had had with a Ms Reyneke of the respondents, Ms de Saude transmitted the documents in respect of the 54 pending extension/renewal applications, which she had previously conveyed to the 4th respondent on 3 December 2010, to Ms Reyneke.

[21] On 10 December 2010 Ms de Saude sent Ms Reyneke an urgent email regarding the pending application for a client, Ms L Clarke, whose application was filed on the basis of her life-partnership with a South African citizen on 19 August 2010. Ms Clarke needed to leave the country urgently. Ms de Saude requested whether it was possible for Ms Reyneke to adjudicate Ms Clarke's application prior to her departure on 15 December 2010 as the last temporary residence permit endorsed in Ms Clarke's passport expired on 3 November 2010. When she did not receive a response from Ms Reyneke, she sent her an sms from her mobile phone. Ms de Saude received an sms response from Ms Reyneke advising that she was preoccupied. She was told to contact the 4th respondent in relation to her request about Ms Clarke.

[22] On the same date Ms de Saude called the 4th respondent's landline number to discuss Ms Clarke's situation, as well as 'bridging permits' which had apparently been promised by Ms Reyneke for first-time applications, to no avail. Ms de Saude then called the 4th respondent on his mobile phone. He did not answer his mobile phone and she left a detailed message requesting that he revert to her as soon as reasonably possible. Ms de Saude did not receive a response.

[23] Later that afternoon Ms de Saude called another mobile number on the website of the DHA (+27795193105) and spoke to a Mrs Herbert. She explained to Mrs Herbert the situation regarding the outstanding applications (particularly the applications of clients who were to receive 'bridging permits) and the non-responsiveness of all the officials she had been communicating with, including the 3rd and 4th respondents. Mrs Herbert suggested that Ms de Saude speak with 'Solly', whom she introduced as her supervisor. After explaining the situation to Solly he advised that he would get the 4th respondent to revert to Ms de Saude. No response was received. Ms de Saude also tried calling the 3rd respondent on his landline and mobile phone numbers but they were unanswered.

[24] Over the period 13 to 15 December 2010 Ms de Saude, together with the other staff employed by the 1st applicant, spent many hours searching through their files, making copies of the documents for the first-time applications and scanning these documents so that they could be transmitted electronically. She emailed the documents for 134 of the 1st applicant's clients to the 4th respondent and copied the 3rd respondent, Ms Reyneke and the 4th respondent. The purpose of emailing these documents was to assist in the provision of the 'bridging permits' which the 1st applicant had been advised by the 4th respondent would be issued to these clients.

[25] On 13 December 2010 Ms de Saude called Ms Reyneke on her landline and mobile numbers in order to obtain an update in respect of the pending applications but there was no answer.

[26] On the same day Ms de Saude contacted the 3rd respondent on his landline and mobile numbers regarding this issue, to no avail. Later that morning, after hiding her caller identity, she again called the 3rd respondent on his mobile number and he answered. After introducing herself and explaining the purpose of her call, the 3rd respondent rushed her off the phone, telling her that he was busy driving, would not be available for the rest of the day and that she should call him the following day. Ms de Saude informed the 3rd respondent that she had been trying unsuccessfully to reach him on numerous occasions over the past days. The 3rd respondent promised her that he would answer her call the following day and also promised that he would assist her.

[27] On the following day Ms de Saude called the 3rd respondent on his landline and mobile numbers on a number of occasions throughout the day but there was never any reply.

[28] On the same day (14 December 2010) Ms de Saude called the 4th respondent on his landline number and spoke with 'Amanda' who advised that the 4th respondent was not in the country. Amanda advised that she had not received Ms de Saude's emails regarding the documents for the 'bridging permits' and that she would request the 4th respondent to respond. Ms de Saude then received an email from the 4th respondent's email address advising that Ms Fisher, the 4th respondent's personal assistant, would respond to her in due course.

[29] On 15 December 2010 Ms de Saude again called the 3rd respondent on his landline and mobile numbers, to no avail. She also received 8 emails from the 4th respondent's email address confirming receipt of 14 first-time applications which she had transmitted to him for 'bridging permits'.

[30] On 17 December 2010 Ms de Saude called the 3rd respondent on his landline and mobile numbers with no success. She was thereafter on Christmas vacation and returned on 3 January 2011.

[31] On 6 January 2011 Ms de Saude called the 3rd and 4th respondents on their landline and mobile numbers, to no avail.

[32] On the same day she called Ms Reyneke on her landline number and 'Jackie' answered. Jackie advised Ms de Saude that Ms Reyneke was on leave until the end of January and that she should contact 'Mavis' (on +27218108151) who was part of the team attending to the adjudication of overdue applications. Ms de Saude called that number and spoke to 'Ruth' who told her that Mavis was not taking any calls and that she (Ruth) would assist her. Ms de Saude checked on 3 applications which had been filed with the DHA in December 2009 and Ruth confirmed that these applications were still pending. The 1st applicant's list of the outstanding applications was extensive and Ruth asked that Ms de Saude email her a copy of that list, which she did. This was for the purpose of Ruth retrieving these particular files from the DHA storeroom for adjudication purposes. Ms de Saude later received an email from Ruth confirming that she would do her best to assist where possible.

[33] Again on the same day Ms de Saude resent certain of Eisenberg's emails to the 3rd respondent and copied the 4th respondent, Ms Fisher and Ms Reyneke. She called the landline telephone number of the 4th respondent and spoke with 'Mari-Anne'. Mari-Anne advised Ms de Saude that she was responsible for retrieving the 4th respondent's emails in his absence and she had not yet received Ms de Saude's email. Mari-Anne further advised that the 4th respondent had not been in office for the past 3 weeks as he had been on leave for 2 weeks and then in hospital for a week. She did not know when he was scheduled to return to office. When Ms de Saude told Mari-Anne that she was trying to reach the 3rd respondent urgently, Mari-Anne responded that she did not understand why he was not answering his landline and/or mobile phone as he was in the office and was available. Mari-Anne instructed Ms de Saude to call the 3rd respondent's secretary, Kato' (+27218107322).

[34] Ms de Saude then called Kato on that number. After a short while someone answered the telephone but then hung up before she was able to speak. Ms de Saude tried the number again and this time there was no answer.

[35] On 7 January 2011 Ms de Saude called Mari-Anne again on the 4th respondent's number to establish whether or not she had received her email of the previous day. Mari-Anne advised Ms de Saude that she was in a meeting and would check the 4th respondent's email if and when she had time. She also confirmed that the 4th respondent was not in the office but if Ms de Saude wished to speak to him she should call him on his mobile number. Ms de Saude confirmed the number with her to ensure that she had the correct number, which she did. Ms de Saude then called the 4th respondent on his mobile number but his phone was turned off and the call went directly to his voice mail. His voice mail instructed that a voice message should not be left and that an sms should be sent to which he would respond. Ms de Saude then sent the sms, briefly explaining that the 1st applicant was not receiving any response to its correspondence whatsoever, and requesting that he kindly respond. No response was received.

[36] On the same day at 14h10 Ms de Saude received an email from the 4th respondent's email address, which email was forwarded to the 3rd respondent and copied to Ms Reyneke. The email advised him (the 3rd respondent) to respond to Eisenberg's previous emails which had been resent to the 3rd respondent on 6th January 2011. Again no response was received.

[37] As at 3 February 2011 (the date upon which Ms de Saude deposed to her affidavit) no feedback had been received from either the 3rd or the 4th respondents. Furthermore the 1st applicant had yet to receive a single 'bridging permit' for any of its clients.

[38] The respondents' answer to Ms de Saude's allegations is simply a bare denial. They provide no detail whatsoever as to why her allegations are incorrect.

[39] On 20 January 2011 the applicants wrote to the respondents warning of court action if they did not take meaningful steps to address the undetermined applications. Again no response was received and the present application was launched on 4 February 2011 for hearing on 10 March 2011. At that stage 425 applications (excluding those of the 2nd to 4th applicants) spanning the period December 2009 to January 2011 had not been determined by the respondents.

[40] On 21 February 2011 the state attorney wrote to the applicants on behalf of the respondents. The gist of this letter was that of the 425 applications, 113 had now been determined, 154 were missing completely and 158 although 'reflected as captured' could also not be located.

[41] The applicants responded by pointing out certain errors in the respondents' records. These included that 2 names on the respondents' list did not form part of the undetermined applications, some of the applications listed as 'lost' had actually now been finalised, and the number of applications with queries listed by the respondents did not match the number of previous queries. The applicants proposed that the respondents attend at the 1st applicant's offices to copy all missing documents at their (the respondents') expense. The litigation would be suspended while attempts were made to resolve the matter. Thereafter various officials came to the offices of the first applicant on 3 and 4 March 2011 to copy the missing applications.

[42] The respondents then undertook to determine all outstanding applications by

10 March 2011. However this did not happen because instead of comparing 'appleswith apples' the respondents produced a further 3 separate lists. In short these allcontradicted each other in numerous material respects and in any event containedmany inaccuracies. The respondents have subsequently abandoned any reliance onthese lists.

[43] It is at this point that things become a little murky. On 12 April 2011 Eisenberg sent an updated list to the state attorney. Although the respondents make much of Eisenberg's failure to refer to this list in his supplementary affidavit deposed to on

11 May 2011 and seek to draw an adverse inference therefrom, Eisenberg is candidthat he had simply overlooked this email. This is not surprising when regard is had tothe voluminous amount of correspondence and lists which had been emailed over andover again to the various respondents. In any event that is not really the issue. What isin issue is that somehow handwritten annotations found their way onto that 12 April

2011 list. These annotations reflect which applications were still pending, which had been rejected, and which had been approved. And an unknown official or officials in the employ of the respondents then dealt with that list on the basis of those handwritten annotations, concluding that there were now only 13 applications which still needed to be determined. According to the respondents of those 13 only 6 presently remain undetermined.

[44] Eisenberg is adamant that the handwriting on the list is neither his nor that of any of his staff members. The respondents are equally adamant that the handwriting is not theirs or that of anyone in their employ. Eisenberg's covering email to that list merely reads that: 'Dear Mr Mhlana Thanks for your call today.

Please find attached hereto a list of what remains outstanding for Eisenberg & Associates from the original list of this law firm in our founding papers.

Let's find a way of resolving this case once and for all. With my kind regards'

[45] The applicants point out that of the 13 applications which the respondents concluded still need to be determined, they are simply wrong in respect of the following clients:

1. Gin Hua Yan: the respondents claim in their affidavit that this application was not received by them nor was a copy provided by the 1st applicant. However, according to the very list upon which they now rely, their own records reflect that this client's application was received by them on 5 February 2010 and that it was still pending;

2. Awny Monir Sadek Samy: the respondents aver that this application was finalised and sent to their Cape Town regional office but that by 22 July 2011 it had not been collected by the 1st applicant. The 1st applicant points out that as can clearly be seen from the endorsement stamp it collected this permit on 10 June 2011;

3. Olga Shevchenko: again the respondents allege that this application was not received from either the Cape Town regional office or from the 1st applicant. However the list upon which they rely reflects that the application was received by them on 25 May 2010 and was still pending;

4. Margarita Murma: the respondents allege that this client's application was not received from the 1st applicant. However, again, according to the list upon which the respondents rely the application was received by them on 28 July 2010 and was still pending;

5. Anastasia Akatyeva: the respondents allege that this client's application, although approved, had not yet been collected by the 1st applicant on 16 September 2011. However according to the list upon which the respondents rely, it was collected by 1st applicant on 2 June 2011;

6. Yan Qing Chen: the respondents claim that they have no record of this client's application and that it has thus not been received from the 1st applicant. However according to the list upon which they rely it was received by them on 1 September 2010 and was still pending (it was in fact finalised on 29 June 2011);

7. Chaya Mushka Cohen: the respondents allege that this client's application was not on the 1st applicant's list and that the 1st applicant has not even provided a copy thereof. However, according to the list upon which the respondents rely they responded to this application on 26 November 2010 and it was still pending;

and

8. Halyna Yila: the respondents claim that this client's application was rejected because the client did not have a valid passport and that it is 'now on appeal'. However, according to the list upon which the respondents rely, it has always been an appeal and the appeal was lodged in June 2010. The 1st applicant points out that in any event there was no requirement for this client to have a valid passport because she is an asylum seeker.

[46] The applicants accordingly point out that of the 13 applications determined as 'pending' by the respondents, 8 (i.e. over half) contain errors. In addition the list refers to one 'Lars Peter Leyendecker'. However in the respondents' affidavit they make no mention of this person but instead refer to a Lena Myemnkiere Papy who is not even included on the list.

[47] In addition in their affidavit the respondents first claim that with regard to the 1st applicant's clients 'The remaining applications, save for one, are not outstanding, as appears from the following...' but in the very next paragraph they claim that 'There are thus no outstanding applications for Eisenberg & Associates'.

[48] Similar problems occur with the 5th applicant's clients.

[49] The applicants claim that compounding the confusion at the DHA is the fact that the applicants have been receiving yet more, different lists from the Cape Town branch of the Department. These lists are typically supplied by a Ms Abrahams. Two of these lists are referred to in the papers, one dated 1 August 2011 and the other 19 October

2011. Neither of these lists even approximate the list relied upon by the respondents. Notably, the list of 19 October 2011 - less than a month prior to the hearing of this matter - lists 73 applications which are either pending or of which there is no trace.

[50] In their affidavit the respondents' Mr Mamabolo (who is the 3rd respondent) deals with the review regarding compliance with departmental directives and procedures conducted in the DHA's Cape Town and other regional offices in the Western Cape, outlines the steps taken by the DHA in setting up a hub in Pretoria for the central adjudication of applications for permits, and sets out what has apparently been achieved as a result of these steps.

[51] According to the 3rd respondent in May 2010 a Mr Mellet {'Mellet), was appointed as the Director of Immigration Services for the Western Cape. He was instructed by the Minister to oversee a review of compliance with standard operating procedures of the DHA by its Cape Town regional office and other regional offices in the Western Cape.

[52] The review commenced on 3 May 2010. It is an ongoing process to ensure that officials comply with departmental procedures and directives. The investigation revealed that there has been large scale non-compliance with standard operating procedures.

[53] The non-compliance with departmental procedures and directives includes the following:

1. It appears that there has been collusion between immigration practitioners and officials of the DHA in relation to the adjudication of applications; irregular engagement between practitioners and officials regarding pending applications;

and the submission of applications without the requisite supporting documentation.

2. Certain applications to the DHA were being considered and decided 'by negotiation'. In other words, immigration practitioners and members of the public were influencing the outcome of applications after these had been submitted to the DHA.

3. The knock-on effect of these practices had adversely impacted on the management of the Cape Town office to such an extent that some immigration practitioners were wielding undue influence over departmental officials and procedures. They were gaining an unfair advantage over the general public. This, in turn, also adversely affected service delivery.

4. Immigration officials complained of abuse and intimidation by syndicates, individuals and in particular, immigration practitioners.

5. Departmental policies and directives were ignored. For example, in 2010 a corporate permit and more than 70 corporate worker

authorisation certificates for so-called 'exotic dancers' had been illegally issued to a Cape Town club, in flagrant disregard of Departmental Directive No 22 of 2007 ('the 2007 directive) that exotic dancing is not regarded as a scarce skill.

6. The 2007 directive was similarly ignored when the DHA's Durban regional office issued corporate permits for exotic dancers to 5 nightclubs in Durban. In addition, a member of one of the nightclubs had in his possession 2 new face value corporate certificate books which could be used to issue certificates to corporate workers, and which nobody is allowed to possess. The official involved in the issue of the corporate permit to the Cape Town club, who was the former Assistant Director and Head of the Permit Office in Cape Town, was immediately suspended and disciplinary proceedings were brought against him. After a disciplinary enquiry before an independent chairperson he was dismissed in September 2010. He noted an appeal against his dismissal. In November 2010 his appeal was dismissed. Another senior official who was also involved in the issuance of a corporate permit to the same Cape Town club, who was the Director: Immigration Services, resigned in March 2011 before disciplinary proceedings against him could be continued. Steps are being taken to bring disciplinary proceedings against the officials involved in the issuance of corporate permits in KwaZulu-Natal.

7. Moreover, in terms of the Departmental Directive of Corporate Permits issued on 29 October 2008, a corporate permit may not be issued without a recommendation by the Department of Trade and Industry ('DTI') as contemplated by s 21(2) of the Act. In certain of the nightclub applications there was no recommendation by the DTI.

[54] As a result of the many irregularities that emerged in the aforesaid review the Anti-Corruption Unit of the DHA commenced a forensic investigation in co-operation with the Directorate for Priority Crimes Investigation ('the Hawks). This investigation had not yet been completed when Mr Mamabolo deposed to his affidavit on 7 October 2011. The investigation includes an analysis of fraudulent documentation submitted to the DHA; fraudulent permits issued; and irregularities in relation to

corporate permits and worker authorisation certificates.

[55] According to Mr Mamabolo a number of actions were taken to address the specific problems found:

1. Officials in the DHA were informed about violations of standard operating procedures and that disciplinary action would be taken against those who had breached procedures and directives.

2. Immigration practitioners were advised to respect and follow procedures and that irregular practices would not be tolerated.

3. Officials were instructed not to accept poor or incomplete applications.

4. Measures were put in place to improve administrative procedures.

5. The adjudication of applications was moved to a centralised adjudication hub in Pretoria to avoid the violation of departmental procedures and directives.

[56] As to the review in the Western Cape, Mr Mamabolo referred to the affidavit of Mellet which he claimed was filed together with his affidavit. However no such affidavit has been filed. The applicants confirm that they have never seen such an affidavit.

[57] Mr Mamabolo states further that with effect from May 2010 the determination of all applications for permits was centralised at the DHA's central adjudication hub in Pretoria. In practice, applications are submitted to the DHA's regional offices in the

various provinces. The applications are then sent on to the central adjudication hub. This means that all applications submitted across the country are adjudicated at the hub. In Mr Mamabolo's words 'Needless to say, this was a daunting project which brought with it its own challenges and difficulties as regards human resources; equipment; and logistics'. Mr Mamabolo lists the difficulties encountered as follows.

[58] The task of setting up and running a hub was rendered more difficult by the fact that the DHA, and more specifically its Chief Directorate: Permitting, renders extensive services in relation to permits. These include the issuance of permanent residence permits, temporary residence permits, waivers in relation to permanent and temporary residence applications, and exemptions in terms of the Act.

[59] In addition, the DHA is also responsible for appeals to the Director-General and the Minister under the Act, applications for proof of permanent residence, withdrawals of permits, extensions of temporary residence permits and the Large Account Unit. This unit is responsible for the adjudication of corporate permits where large companies are bringing scarce skills into the country. The clients are selected through a specified list of criteria published in the Government Gazette. These applications are dealt with by a selected team and the turnaround time is 15 days. There are 4 categories of direct permanent residence permits under s 26 of the Act, namely worker; spouse; dependent child; and child of a South African citizen. There are 7 categories of permanent residence permits 'on other grounds' under s 27 of the Act, namely worker; extraordinary skills; own business; refugee; retired person; financially independent and relative. There are 12 categories of temporary residence permits, namely visitor; study; treaty; own business; crew; medical treatment; relative; worker; retired; corporate; exchange; and asylum transit.

[60] In accordance with the decision to centralise the adjudication of all applications for permits in Pretoria, all regional offices across the country were instructed to forward pending and new applications to that hub, together with face value documents.

[61] At that stage already, i.e. May 2010, there was already a large backlog of applications in regional offices. In order to deal with this a number of officials experienced in deciding applications for permits were seconded to the hub in Pretoria. A total of 11 adjudicators and additional administrative staff were seconded to the DHA's Head Office at the end of May 2010.

[62] By November 2010 there were an estimated 13 000 applications for permanent residence permits. Of these 6000 were within the turnaround period of 6 months. There were about 7000 applications older than 6 months at the DHA's Head Office and regional offices. As regards temporary residence permits there were about 11 900 applications at Head Office older than the turnaround time of 30 days; and an estimated total of 9 000 at regional offices. In addition there was an estimated backlog of 30 000 applications in respect of documentation for Zimbabweans. (This is a total of 54 900 applications.)

[63] It became apparent that even with the increased numbers of adjudicators and administrative staff, the task of deciding applications would require even more adjudicators and staff; and additional logistical requirements such as a dedicated receipting unit, an in-house courier service and effective communication between the hub and regional offices.

[64] Mr Mamabolo also states that in order to deal with the situation and more specifically the backlog in the adjudication of permits in November 2010, the Minister and the Director-General approved the Permit Stabilisation Project in terms of which the following recommendations would be implemented:

1. One central postal receipt unit to receive and dispatch all applications from and to regional offices would be created.

2. Separate adjudication hubs to deal with the backlog, normal applications for permits, and the Zimbabwean Project would be created. This would enable the DHA to monitor their performance separately and to develop appropriate interventions.

3. A daily shift system would be implemented to improve hub operations. The first shift would be from 06h00 to 14h00 and the second from 14h00 to 22h00 on weekdays. A Saturday shift would be from 08h00 until 13h00.

4. At least two Permit Quality Inspectors would be appointed in regional offices. They would be responsible for the receipt of applications and their dispatch to the courier service, XPS. They would also be responsible to ensure that officials who work in the front office are accountable for applications.

5. The process of receiving applications in the front office would be simplified and standardised. This would improve the quality of assessment of applications and increase capacity to assess greater volumes. A checklist for the receipt and assessment of applications would be implemented.

6. The service level agreement with XPS would be reviewed and steps would be taken to improve their daily operations. This in turn would improve daily reconciliation of applications collected from and delivered to Head Office.

7. Statistics and performance data management would be improved.

8. Telephone conferences would be held on a daily basis between the various offices in the DHA with effect from 1 December 2010.

9. The extensions of temporary residence permits would be processed separately with an improved turnaround time. It was recommended that extensions be finalised within 5 working days given their low risk profile. (It is noted however that the 5 day turnaround time does not accord with the media statement of the Department of 25 November 2010 when the public was informed that the turnaround time would be 48 hours.)

[65] The Permanent Stabilisation Project was implemented in the first week of December 2010.

[66] Mr Mamabolo then refers to the 'major highlights' achieved during the period 6 December 2010 to 6 January 2011. These included the appointment of an additional 35 adjudicators and 160 contract workers for sorting and filing, postal receipt and dispatch; internal couriers; and the establishment of the '48 hour extension hub'.

[67] According to Mr Mamabolo the following challenges were encountered in the process of implementing the Permit Stabilisation Project. There was a need to strengthen the functioning of the DHA in relation to waivers and appeals. There was a need for more office space due to the high volume of applications that were being processed; the DHA ran short of the necessary forms, obtainable only from the government printer. The DHA also experienced problems with the telephone conference system and equipment maintenance. By 7 January 2011 further steps were identified which needed to be taken. These included an amnesty to all permitting officers to dispatch all mainstream permitting applications to Head Office by 31 January 2011; that a permit review workshop would be conducted to focus on process reviews and improvement and that other related aspects would be reviewed towards mid-March 2011.

[68] As at October 2011 Mr Mamabolo claimed that, whilst it must be acknowledged that there were challenges in the permitting system 'before its centralisation, which created a backlog of approximately 54 000 applications' the DHA has taken concrete steps to ensure that the permitting system makes it easy for business and critically skilled people, students and tourists to be issued with relevant permits timeously. He claims that the applicants' contention that the respondents have not complied with their duties under the Constitution and the Act is unfounded. He says that 'They pay no regard to the challenges which the Department faced in implementing the new centralised system; what has been achieved with limited resources; and the need for central regulation and control of the permitting system'.

[69] This is all good and well. However for purposes of adjudicating the present matter the following is apposite. Firstly, there is no allegation by the respondents that the immigration practitioners whom they accuse of misconduct include either of the applicants. Secondly, it is difficult to understand when, in the knowledge that the DHA would be faced with the problems outlined by Mr Mamabolo in his affidavit, they nonetheless issued the media statements of 18 and 25 November 2010. Any reasonable member of the public reading those statements would be justified in concluding that: (a) the DHA had been provided with sufficient resources and expertise 'to ensure foreigners can contribute meaningfully to the development of our country without any obstacles through the timeous issuance of permits to all concerned'; and (b) 'all foreigners seeking extensions to their individual permits....[shall] be granted such extensions within 48 hours...By granting extensions within 48 hours, the applicants will be able to travel, work, study and conduct business as stated in the initial terms and conditions of the permit they seek to extend'. Thirdly, the sorry tale of utter inefficiency over the period December 2010 to January 2011 relayed by Ms de Saude occurred within the first 2 months after the release of media statements expressly to the contrary. And of course the fact of the matter is that the DHA simply did not fulfil its public promises. It is not disputed by the respondents that none of the applications in the present matter were ever attended to within the promised 48 hour turnaround time. In fact on Mr Mamabolo's own version it was never intended by the DHA that there would be a turnaround time of 48 hours, but one of 5 working days. On the applicants' version, as at 3 November 2011, of the 425 undetermined applications, there were 115 permit extension applications and/or review applications and/or administrative correction applications which had still not been finalised. In terms of a supplementary note provided by the applicants on 18 November 2011 there are still 105 such applications.

Evaluation

[70] Before turning to consider whether the relief sought by the applicants is competent it is necessary to apply the wel^known Plascon-Evans rule (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H-635A). Accordingly this matter must be decided on the respondents' version unless I am satisfied as to the inherent credibility of the applicants' version, or that 'the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers'.

[71] In this regard it simply makes no sense that Eisenberg would have sent a list to the respondents on 12 April 2011 which contained handwritten annotations that were, on his own version, factually incorrect. The applicants' records are meticulous compared to those of the respondents. The more likely probability is that Eisenberg's list landed up in the hands of one of the many officials in the respondents' employ. That official then attempted to deal with the outstanding applications based on incorrect or inadequate records and made the handwritten annotations thereon. If this were not the case then Ms Abrahams of the Cape Town regional office would not have been able, based on the same records - which must surely be kept on a central database - to produce two further and still inaccurate lists thereafter.

[72] Furthermore I have to consider the facts which are either admitted or are not seriously disputed by the respondents, and which have been set out in some detail hereinabove.

[73] Having given careful consideration to the respective versions of the applicants and the respondents as set out in the papers and summarised above, the only reasonable conclusion which I can reach is that the applicants' version is inherently credible and the respondents' version is untenable to the extent that it must be rejected. Despite the respondents' protestations to the contrary the inescapable inference is that, irrespective of whether they have the best will in the world, they have dealt with the applications of the applicants' various clients in a manner which can only be described as 'administrative bungling'. I thus find that whether the relief sought by the applicants is competent must be determined on their version.

Whether the relief sought is competent

[74] As I have mentioned above the respondents are the officials in the DHA who, generally speaking, administer the immigration regime in South Africa in terms of the Act and regulations pursuant thereto. One of the most important components of this regime is the lawful and efficient provision of temporary residence permits to foreigners who wish, for whatever reason, to enter and sojourn in South Africa.

[75] For a foreigner in South Africa these permits are the single most important document that they can possess. It is the basis of their legal existence in this country. Every aspect of their lives - the ability to travel freely (s 21 of the Constitution); the ability to work and put food on the table for their families (a component of the right to dignity in s 10 of the Constitution, see Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) at 339B-C and F-G, 340G); the ability to keep their children in school (ss 28 and 29 of the Constitution); and the basic

right to liberty (s 21(1) of the Constitution) - is dependent on the physical possession of a valid permit.

[76] The acquisition of a valid permit is the primary pre-requisite for any foreigner in South Africa and is thus a major stepping-stone to bringing tourists, skills, foreign investment and employment to this country. This much is acknowledged by the respondents in their media statement of 18 November 2010.

[77] Section 195 of the Constitution places an obligation on public administration not only to adhere to a high standard of professional ethics; but also that public administration must be accountable and transparent by providing the public with timely, accessible and accurate information and responding to the needs of people.

[78] Section 33(1) of the Constitution provides that 'Everyone has the right to administrative action that is lawful, reasonable and procedurally fair'. The respondents are bound by the Constitution to adhere to s 33(1) thereof.

[79] The applicants submit that the unreasonable delay of the undetermined applications constitutes a violation of the law and the Constitution. This violation gives rise to two independent causes of action: one based on judicial review and the other on a mandatory interdict. The effect of the relief sought in respect of these two independent causes of action is the same.

Judicial review

[80] The applicants submit that their clients' constitutional rights have been violated by the unreasonable delay of the respondents. Accordingly, the principles applicable include that: (a) the Constitution is the supreme law of South Africa; law or conduct inconsistent with it is invalid to the extent of the inconsistency (s 2 of the Constitution); (b) when interpreting any legislation and when developing the common law every court must promote the spirit, purport and values contained in the Bill of Rights (s 39(2) thereof); and (c) all constitutional obligations must be performed diligently and without delay (s 237 thereof).

[81] Being deprived of a permit due to the respondents' conduct infringes upon the variety of constitutional rights referred to above. The infringement of each of these rights flows from the same source: that without a permit a foreigner in South Africa becomes a 'legal ghost'. He or she is denied recognition of his or valid existence in South Africa, is constantly at risk of arrest, detention and deportation;

may not move freely around South Africa or in and out of South Africa; and cannot be employed and so cannot earn a living with the attendant disadvantages of lack of access to health care, education and the like.

[82] In considering the applicants' contentions it is appropriate to have regard to the sentiments expressed by the Constitutional Court in S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC) at 236e-237c. Although that case considered the constitutional rights of an accused person there is no reason why the principles set out therein should not apply equally here. The court said

'For the State to respect, protect, promote and fulfil the rights in the Bill of Rights, resources are required. The same applies to the State's obligation to assist and protect the courts, to ensure their independence, impartiality, dignity, accessibility and effectiveness. The right to a fair trial requires considerable resources in order to provide for buildings with court rooms, offices and libraries, recording facilities and security measures and for adequately trained and salaried judicial officers, prosecutors, interpreters and administrative staff.

Few countries in the world have unlimited or even sufficient resources to meet all their socio­political and economic needs. In view of South Africa's history and present attempts at transformation and the eradication of poverty, inequality and other social evils, resources would obviously not always be adequate. However, as far as upholding fundamental rights and the other imperatives of the Constitution is concerned, we must guard against popularising a lame acceptance that things do not work as they ought to, and that one should simply get used to it. Naturally the relevant authorities must attempt to see to it that facilities are provided as far as possible. Furthermore, all those concerned with and involved in the administration of justice -including administrative officials, Judges, magistrates, assessors and prosecutors must purposefully take all reasonable steps to ensure maximum compliance with constitutional obligations, even under difficult circumstances. Responsible, careful and creative measures, borne out of a consciousness of the values and requirements of our Constitution, could go a long way to avoid undesirable situations... To compromise the right to a fair trial may in principle be as dangerous as to cancel or postpone democratic elections because of a lack of facilities or resources.'

[83] The framework legislation for judicial review is the Promotion of Administrative Justice Act No 3 of 2000 ('PAJA).

[84] Section 6 of PAJA sets out the relevant ground of review as follows:

'(2) A court or tribunal has the power to judicially review an administrative action if-

(g) The action concerned consists of a failure to take a decision;

…...........

(3) If any person relies upon the ground of review referred to in section 2(g), he or she may in respect of a failure to take a decision, where -

(a) (i) an adjudicator has a duty to take a decision;

(ii) there is no law that prescribes a period within which the administrator is required to take that decision; and

(iii) the administrator has failed to take that decision; institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision.'

[85] The applicants have set out why 30 days is a reasonable deadline within which a temporary residence permit application should be finalised. The respondents concede that this is so. The respondents are clearly under a duty to take decisions on the undetermined applications. It is common sense that in the absence of such a duty, the Act would cease to have meaning. The respondents could, simply by refusing to take decisions, reduce the Act to an arbitrary and ineffective piece of legislation. This goes directly against the purpose of the Act itself as well as the principle of the rule of law enshrined in the Constitution. The respondents have simply failed to take the decisions required of them in a lawful, reasonable and procedurally fair manner.

[86] The respondents argue that this relief sought by the applicants must fail on two grounds. The first has already been dealt with, namely that on the facts the respondents' version must be favoured over the applicants' version. The second, which is inextricably linked to the first, is that since on the respondents' version only 6 applications have not been determined, this court should exercise its discretion to withhold granting the relief sought in accordance with the trite principle that in proceedings for judicial review, a court has a discretion whether to grant or withhold the remedy (Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) 246C-D). However since I have found that the applicants' version is inherently credible and that the respondents' version is clearly untenable, it follows that I find that there are still 105 applications which have not yet been determined by the

respondents. That is a significant amount. This also means that the lives of 105 foreigners (excluding their dependents who are also obviously affected) hang in the balance until the respondents get their house in order.

[87] In these circumstances the applicants are entitled to the relief sought by them under s 6 of PAJA.

[88] The last of the first-time applications in the present matter was submitted in January 2011 (i.e. 10 months ago). Some applications have remained undetermined since February 2010 (i.e. 19 months ago). The respondents themselves concede that the turnaround time envisaged in the Act is 30 days (although they themselves seem to believe that a turnaround time of somewhere between 48 hours and 5 working days would be reasonable, at least in respect of applications for extensions of temporary residence permits). I am satisfied that it would be just and equitable to order the respondents, in terms of s 8(1 )(a)(ii) of PAJA, to determine within 30 working days from date of this order, the undetermined temporary residence permit applications and/or extension applications and/or review applications and/or administrative correction applications. It is also just and equitable to order that in the event that any of the aforesaid undetermined applications have been misplaced by the respondents, they shall take steps, at their own expense, to copy the misplaced applications from the offices of the applicants in order to give effect to the aforegoing.

[89] The consideration of the alternative relief sought by the applicants by way of a mandatory interdict thus falls away.

The relief sought by the applicants that the respondents must determine any subsequent review and/or administrative correction applications which might arise from determination of the undetermined applications

[90] The applicants argue that it would be appropriate to grant this 'consequential' relief since it will nonetheless pertain to their presently affected clients.

[91] The respondents argue that this relief is not competent for the following reasons. Firstly, it is a trite principle that courts of law exist for the settlement of concrete controversies and actual infringement of rights, and not abstract questions. Secondly, this court cannot make an order which is not capable of being enforced.

[92] As to the determination of 'abstract questions' the Appellate Division in Geldenhuys and Neethling v Beauthin 1918 AD 426 at 441 said that:

'No doubt there is something to be said in favour of sanctioning the issue of declaratory orders even where there has been no infringement of rights. But on the other hand it would be very difficult to define the limits within which that jurisdiction should be confined. And its unregulated exercise would lead to great uncertainty of practice. After all, Courts of Law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise about differing contentions, however important. And I think we shall do well to adhere to the principle laid down by a long line of South African decisions, namely that a declaratory order cannot be claimed merely because the rights of the claimant have been disputed, but that such a claim must be founded upon an actual infringement.'

[93] Most recently, the Constitutional Court has held that whether or not administrative action has been taken which would make PAJA applicable (as in the case of prospective internal reviews under the Act) cannot be determined in the abstract. Regard must always be had to the facts of each case. This was set out in Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC) at 341B:

PAJA defines administrative action as a decision or failure to take a decision that adversely affects the rights of any person, which has a direct, external legal effect. This includes action that has the capacity to affect legal rights. Whether or not administrative action, which would make PAJA applicable, has been taken cannot be determined in the abstract. Regard must always be had to the facts of each case.'

[See also President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at 67G-68B.]

[94] It seems to me that to grant the consequential relief sought by the applicants would be tantamount to the determination of issues which may or may not arise. I would thus be granting relief in the abstract. The applicants really seek to protect themselves (or rather their affected clients) from the possibility that the respondents' pattern of tardiness will continue. But this does not amount to a concrete controversy or actual infringement of rights as set out in the Geldenhuys case referred to above.

[95] And in any event it should be borne in mind that the applicants themselves might, due to administrative or other error, submit incomplete or erroneous applications. By making the order in the terms sought by the applicants, I could potentially be opening the door to a flood of contempt applications against the respondents.

[96] Linked to this is the principle that courts can only grant orders which can be enforced. As said by the Appellant Division in Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) 720D and G:

'It is trite that a court will not engage in the futile exercise of making an order which cannot be carried out.. .the same principle must apply when the question is one not of obeying the law but of complying with an order of court.'

[97] In the circumstances this part of the relief sought by the applicants must fail.

Costs

[98] During the course of argument the respondents successfully applied to strike out substantial portions of the applicants' replying papers. The entire affidavit of Mr Isaacson (including all annexures thereto) was struck out and I agree with the submission of the respondents' counsel that approximately 75% of the replying affidavit of Eisenberg (including annexures) was similarly struck out.

[99] As to the remaining costs and without adopting an overly technical approach, I believe that it would be just and equitable to order the respondents to effect payment of 80% of the applicants' costs. This is because about 80% of the argument and the papers not struck out with costs related to the relief in which the applicants have been successful.

Conclusion

[100] In the result I make the following order:

'1. The respondents' failure to decide, within a reasonable time, upon the temporary permit applications and/or review applications and/or administrative correction applications of the persons named in the list annexed marked "X" [subcategories 'A' to 'F'] is hereby reviewed and set aside.

2. The respondents shall within 30 (thirty) working days from date of this order determine the temporary residence permit applications and/or review applications and/or administrative correction applications of the persons named in the list annexed marked "X"

[subcategories 'A' to 'F']. For this purpose 'determine' shall mean decide, deliver and immediately make available to the applicants the 'determination' in each instance upon its arrival at the Cape Town office of the first respondent.

3. In the event that any of the undetermined applications have been misplaced the respondents are directed to take steps, at their own expense to copy same from the offices of the applicants in order to give effect to the terms of this order.

4. The balance of the relief sought by the applicants is dismissed.

5. The respondents shall effect payment of 80% of the applicants' party and party costs, save for the costs relating to the affidavit of Mr Isaacson (which has been struck out) and 75% of the replying affidavit (including annexures) of Mr Eisenberg (which has similarly been struck out).

J I CLOETE