Mehmood v Minister of Home Affairs and Another (9427/2015) [2021] ZAWCHC 287 (3 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DVISION, CAPE TOWN)

Case no: 9427/2015

In the matter between:

ARSHAD JANI MEHMOOD

Applicant

and

THE MINISTER OF HOME AFFAIRS

First Respondent

THE DIRECTOR-GENERAL:

DEPARTMENT OF HOME AFFAIRS

Second Respondent

JUDGMENT DELIVERED ON 3 JUNE 2021

1. This is an opposed application instituted on 16 November 2015 in terms whereof the applicant seeks an order declaring the first and second respondents (“the respondents”) to be in contempt of an order granted by Van Staden AJ on 30 July 2015.

2. The relevant portion of the order of Van Staden AJ reads as follows:

The Respondents are compelled to consider the Applicant’s application for citizenship in South Africa and to make a decision thereon, which decision shall be communicated to the Applicant’s attorney, Mr. G Williams of G. Williams Attorneys, within 10 (TEN) days of granting this order.

3. It is common cause between the parties that the order of Van Staden AJ had been served upon the respondents, and that the applicant had not received a response and/or decision by the time the contempt proceedings were launched on 16 November 2015. The applicant was however advised prior thereto that the respondents were considering his application for citizenship. The respondents opposed the contempt application and on 22 December 2015 the matter was postponed by agreement between the parties to 7 March 2016. On 23 December 2015 the Department of Home Affairs addressed a letter to the applicant informing him that his application for citizenship had been unsuccessful due to the lapse of his permanent residence permit. On 3 February 2016, the State’s Attorney addressed correspondence to the applicant’s erstwhile attorney of record attaching the letter dated 23 December 2015.

The State’s Attorney accordingly requested the applicant to withdraw the contempt application tendering the applicant’s

wasted costs.

4. Despite such correspondence, on 16 February 2016, the applicant launched a chamberbook application seeking an order compelling the respondents to file their opposing affidavits. Such application was emailed to the respondents. The following day the respondents replied referencing their letter dated 3 February 2016 to which they had not received a response. They moreover attached a copy of the letter sent to the applicant on 23 December 2015 and pointed out that there had accordingly been compliance with the order of Van Staden AJ as a decision on the applicant’s application for citizenship had been made and communicated to the applicant and his erstwhile attorney. The letter moreover advises the applicant that he has a right to appeal[1] or review the decision if he wished to do so and implored the applicant to withdraw the chamberbook application. The applicant’s

erstwhile attorney of record however replied on the same date stating that they would be proceeding with the chamberbook application.

The State’s Attorney indicated that they wished to oppose such an application. The chamberbook application was however never pursued. On 26 February 2016 the State’s Attorney once again addressed correspondence to the applicant’s erstwhile attorney of record requesting him to withdraw the contempt application in light of the fact that a decision had been taken by the first respondent in respect of the applicant’s application for citizenship. The applicant was once again advised that he could appeal or review the decision if he so wished.

5. On 7 March 2016 the matter was postponed to 30 May 2016.

6. The respondents filed an opposing affidavit on 23 March 2016 wherein they state that the relief sought is of academic interest only in that the order had been complied with for the reasons set out above.

7. The applicant thereafter and on 27 May 2016 filed a replying affidavit wherein he denies receipt of the letter dated 23 December 2015, but admits that his attorney of record received the letter when it was attached to the email of 3 February 2016. He moreover takes issue with the fact that the name of the author of the letter is not evident therefrom, and states that he is dissatisfied with the reason for the decision taken. He accordingly brought an application for the matter to be referred for the hearing of oral evidence in order to call the author of the letter to testify regarding the decision taken and the remedies available where such decision “adversely affects the status of a person”. This application for the referral to oral evidence was opposed and subsequently dismissed with costs by Dlodlo J (as he then was) on 9 March 2017.

8. The applicant’s erstwhile attorney of record also deposed to a confirmatory affidavit on 27 May 2016 wherein he states at paragraphs 26 and 27 thereof that “the respondents have been wilful and mala fides, in light of the time period that has lapsed after the order was granted… The decision reached us approximately seven (7) months later”.

9. From the replying and confirmatory affidavits, it is evident that whilst the applicant might not be pleased with the decision taken, he acknowledges that one was indeed taken, albeit not within the time periods stipulated in the order of Van Staden AJ. The respondents on the other hand, in their opposing affidavits, state that the delay in taking a decision was not out of a wilful disregard of the order of Van Staden AJ but was rather as a result of human resources difficulties, with one staff member who was dealing with the matter going on maternity leave, and another staff member leaving their employment.

10. The applicant then oddly, on 17 January 2020, launched a new application under the same case number as the present one, which was set down for 27 February 2020, seeking the same relief as in the present matter; in other words, declaring the respondents to be in contempt of the order of Van Staden AJ granted on 30 July 2015. In the affidavit filed in support of such application the applicant alleges that during April 2018 he submitted an appeal to the offices of the respondents via registered post and was still awaiting the outcome of such appeal. He contended further that his application for citizenship was not considered as

ordered by Van Staden AJ on 30 July 2015. On 29 July 2020 there was a substitution of attorneys of record for the applicant, and the application issued on 17 January 2020 was withdrawn on 1 December 2020.

11. On 11 December 2020 the applicant elected to file a supplementary affidavit, without the leave of the court to do so, in the first contempt application which had not been withdrawn. This supplementary affidavit was almost identical to the one annexed to the 17 January 2020 application. Notably, the applicant admits in paragraph 8 of this affidavit that the letter dated 23 December 2015 “contained the outcome of the respondents’ decision as ordered on 30 July 2015”. The affidavit moreover at paragraph 14.1 states that Dlodlo J, in dismissing the application for referral to oral evidence, found that a decision regarding the applicant’s application for citizenship had been taken by the respondents. I am in agreement with Ms. Ruiters, who appeared on behalf of the applicant, that these comments made by Dlodlo J were made to counsel in passing during argument of the application for referral to oral evidence. They were not made in his judgment or order and I am accordingly not bound by them.

12. The applicant in this supplementary affidavit repeats the allegation that his application for citizenship was not considered as ordered by Van Staden AJ. He also states that his permanent residence permit had not lapsed as confirmed in a letter received by him from the Department of Home Affairs on 6 September 2019.

13. The applicant thereafter proceeded to have the matter enrolled on the opposed motion court roll. On 4 February 2021 Hlophe JP granted an order postponing the matter to 15 March 2021. On that date, Cloete J granted an order postponing the application to 3 June 2021 (the date that it came before me) and directing the respondents to file opposing papers by 19 April 2021 and the applicant to file any replying papers by 3 May 2021, with the parties to file their heads of argument in accordance with the practice directives.

14. On 21 April 2021 the respondents filed an opposing affidavit, in answer to the aforementioned supplementary affidavit, out of time without any application for condonation.

15. On 25 May 2021, the applicant’s attorney of record deposed to a replying affidavit, significantly out of time, although this was accompanied by an application for condondation. These affidavits resulted in the papers being unnecessarily lengthy, running to 490 pages, whilst repeating a substantial portion of allegations already contained in the prior affidavits.

16. Both parties also filed their heads of argument very late, with only the applicant filing an application for condonation therefor. It is unacceptable for there to be such a blatant disregard for the orders and the practice directives of this court. Nevertheless, I proceeded to grant condonation and accept all of these late documents and hear the parties on the merits of the application as I am of the view that the interests of justice require finality to be reached in this matter which has been ongoing for five and a half years.

17. The question then to be decided is whether there has been non-compliance with the order of Van Staden AJ, and if so, whether such non-compliance is willful and mala fides.

18. In Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) Cameron JA at para [9] and [10] held that:

[9] The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide’. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

[10] These requirements – that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.

19. The court went on at para [42] to find that:

… the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt… But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

20. The position was further clarified in the matter of Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC) where the court at paras [60] to [67] held that the standard of proof to be applied in contempt cases varied in accordance with the consequences of the remedy. If the sanction involved committal, the criminal standard of proof, which is beyond reasonable doubt, was always required. However, if it involved civil remedies, the civil standard of proof, which is a balance of probabilities, sufficed.

21. Turning to the facts of the present matter, the applicant seeks an order for the respondents’ committal to prison for a period of 30 days, suspended for a period of one year on condition that the respondents comply with the order of Van Staden AJ. The applicant is therefore required to prove the requisites for contempt of court beyond a reasonable doubt.

22. Whilst it is clear that the applicant is disgruntled with the decision of the respondents in refusing his application for citizenship, it does not detract from the fact that a decision has indeed been taken. There has accordingly, since February 2016, been compliance with the order of Van Staden AJ. Nevertheless, even if the applicant’s argument were to be accepted that there hasn’t been compliance with the order of Van Staden AJ as the decision had not been properly considered by the respondents (I pause to mention that I make no finding in respect of the merits of the decision itself), I am of the view that in light of the affidavits filed on behalf of the respondents, such non-compliance can certainly not be said to be wilful and mala fide.

23. Moreover, whilst it is common cause between the parties that the respondents had not complied with the order of Van Staden AJ within the requisite 10 day period set out therein, they have set out the reasons for the delayed compliance; and the non-compliance during that time period, whilst admitted, cannot be found to be mala fide.[2]

24. There is accordingly no basis for finding that the respondents are in contempt of the order of Van Staden AJ.

25. Whilst the applicant may be frustrated at the process and outcome of his application for citizenship, there are other remedies available to him, such as inter alia, those provided for in sections 5(8)[3] and 25 of the South African Citizenship Act 88 of 1995. Section 5(8) does not however envisage an appeal of the Minister’s decision, such as that lodged by the applicant in April 2018.

Section 25 of the Act does nonetheless make provision for the review of any decision made by the Minister in terms of the Act. The applicant has however elected not to pursue such a course of action.

26. In the circumstances I make the following order:

(a) The application is dismissed with costs.

NEL AJ

[1] It ought to be pointed out that sections 8 and 25 of the South African Citizenship Act 88 of 1995 do not make provision for an appeal of the Minister’s decision, although provision is made for a review thereof. This is dealt with again below.

[2] It has been held that a court may find a party to be in contempt of court even if the non-compliance with a court order has been

remedied prior to the hearing. See in this regard the matters of Kenton-On-Sea Ratepayers Association and Others v Ndlambe Local Municipality and Others 2017 (2) SA 86 (ECG) at para [68] to [70] and Lan v OR Tambo International Airport Department of Home Affairs Immigration Admissions, and Another 2011 (3) SA 641 (GNP) at para [70] to [77].

[3] Section 5(8) provides that: If the Minister has refused an application for a certificate of naturalization by or on behalf of any person, the Minister shall not be obliged to reconsider such application at any time, but shall not consider another application for a certificate of naturalization by or on behalf of such person until the expiration of a period of at least one year from the date upon which the person in question was advised of the Minister’s decision: Provided that the Minister shall at any time reconsider an application if he or she receives any new information regarding the applicant which may influence his or her original decision.

[3] Section 5(8) provides that:

If the Minister has refused an application for a certificate of naturalization by or on behalf of any person, the Minister shall not be obliged to reconsider such application at any time, but shall not consider another application for a certificate of naturalization by or on behalf of such person until the expiration of a period of at least one year from the date upon which the person in question was advised of the Minister’s decision: Provided that the Minister shall at any time reconsider an application if he or she receives any new information regarding the applicant which may influence his or her original decision.