The Constitutional Court has ruled against Aaron Motsoaledi in his appeal bid regarding Zimbabwean exemption permits, and has ordered him to pay the costs from his own pocket, which is an unusual decision.
Legal experts say that the recent Constitutional Court ruling which saw Minister of Home Affairs Aaron Motsoaledi and director-general Livhuwani Makhode slapped with exorbitant costs on Monday in their personal capacity is unusual but not the first.
At the heart of the ruling that was delivered this week, is a 2017 court order to Home Affairs that declared sections of the immigration act unconstitutional.
Lawyers for human rights challenged the constitutionality of undocumented foreign nationals not being allowed to appear in court after 48 hours (about 2 days) of being arrested.
However, Parliament failed to amend the legislation after it was suspended for two years to allow time for it to correct the law.
Home Affairs approached the court earlier this year, in a bid to extend the order, but was taken aback when Makhode was issued with an order to pay 25% and Moatsaledi to pay 10% of the legal costs that lawyers for human rights incurred in this lawsuit.
Judge Johann Kriegler from Freedom Under the Law told Cooking365:
It is unusual for any court, especially the Constitutional Court to make an order for a representative litigant to pay costs personally, I am unaware of any such order.
He added that it has not only happened in the case of Motsoaledi and Makhode.
“For instance, it has happened on a trustee on behalf of a trust, or a curator on behalf of a child or a director on behalf of a company.”
Kriegler explained that when a party acts in a reprehensible manner, such order can be made.
“It is done very seldom, Motsoaledi could not even bother to look at the papers, he was not even concerned at all about whether the court order was obeyed or not, until he read about it on the paper.
“But the court said you cannot do that because you get paid a salary by the taxpayer, to see to it that the department does its job. You cannot just walk away and say I did not do anything wrong because I was unaware of it.”
Kriegler said that Justice Steven Majiedt was strong in his condemnation of the department and the complete failure to do anything to see to it that they stuck to the court order.
“When they were asked why the correction of the law never happened in time, they used Covid-19 as an excuse – which was a false excuse because the time had already run out before the pandemic. They also used the excuse of Parliament being busy with elections. It was bogus and unacceptable and a very bad excuse and this is what Majiedt expressed in that ruling,” he said.
Meanwhile, director of Chemaly Attorneys, Richard Chemaly, also said that ruling was definitely unusual in the sense that it rarely happens but it’s not a matter the Constitutional Court will shy away from when the circumstances call for it.
“In this case, the judgement gave a high degree of consideration towards the costs. This is an interesting order because part of the Constitutional Court’s job is declaring or confirming orders of unconstitutionality. To preserve the sanctity of the separation of powers, it typically suspends its orders as is the present case, for two years, to afford the legislature the time to remedy what it deems unconstitutional.”
He explained that historically, the legislature was very good at this. It took less than a year to pass legislation on same-sex marriage since the Constitutional Court order in Marie Fourie, which challenged the exclusion of benefits and responsibilities in same-sex marriages as opposed to heterosexual marriages.
“Lately, they’ve been doing a poor job. For example, we’re still waiting for the legislation surrounding cannabis and that order came down in 2018. I was interested to see the court confirm that it cannot make retrospective orders to continue suspension after the expiry of the term and it was good to see this order accommodate for that,” he said.
In the ruling, Majiedt slammed Parliament for not only failing to pass any legislation, but also failed to ask the Constitutional Court for an extension of the original order before it expired.
“Instead, it waited three years after expiry, and then approached the high court on an ex parte basis, even though that court has no competence to vary an order of this court which sits at the apex of South Africa’s judicial system,” Majiedt said.
In response to the scathing order, the department of home affairs released a statement welcoming the ruling.
It said that:
Motsoaledi has never come across a situation in which officials and legal representatives decide to go to court in his name without his knowledge and any consultation with him.
It further confirmed that these were indeed lapses of extraordinary range and gravity.
“Having said that, Motsaledi accepts that he is ultimately responsible for the fulfilment of the objectives of the department of home affairs and for the actions or failures of all officials serving under him,” the statement said.