We previously reported on the Department of Home Affair’s (DHA) recent Directive 9, which basically declares anybody with an expired permit to be an undesirable person in South Africa and subsequently bans them for 1 to 5 years. Whereas the motivation is in principle understandable, this Directive fails to make any exemptions for people who have actually applied for permit extensions with DHA. This has caused absolut chaos and huge frustrations among our clients and many other foreigners, who feel they have done nothing wrong and are now facing either a ban from South Africa or are stuck in the country.
It would not take long before somebody, who was put into this hardship, would litigate against Home Affairs. Considering that currently we still cannot submit any applications within South Africa, that the SA missions around the world have not been briefed on the new immigration law and VFS is non-functional, I decided to spend time in the High Court today and followed the court proceedings. What an experience.
Whereas the entire new immigration regulations are still likely to be challenged all the way up to the Constitutional Court, certain aspects are tested already. The first challenge circles around Directive 9 and people who have applications pending but are already declared undesirable. The legal team for the plaintiffs selected 2 seemingly easy and clear cases, where spouses of SA citizens with children, who are also citizens, are involved. Those two families have been split up by Department of Home Affairs (DHA), as one parent each has been sent back to their home countries Zimbabwe and Denmark. One would have thought that DHA would agree to resolve these cases swiftly in the interest of human dignity and the undeniable rights of families. But this idea went quickly out of the window when DHA appeared with a full soccer team of attorneys to defend. I counted no less then 11 players!
As it turned out, this case could very well become one of the biggest watershed ones. Many would agree that DHA has since they moved away from a service to a security organisation, things have turned from bad to worse. Needless to say, security has not improved, corruption remains within the department, but additional red tape has only one effect: delays in processing. IMHO security is used as an excuse to cover up for a lack of capacity, competence and service attitude.
All of this came into the mix in front of the judge today. All pleading by the banned spouses’ advocates were countered with primitive legal tricks, formalities and stubbornness. One wonders, if the DHA top brass actually knows about the capacity problems, the massive backlog, the teething problems with VFS. Today they denied them as well as an answer to the wife and children of Mr Henderson, why their daddy could not join them for dinner at home tonight. His only crime after 7 years on a work permit in South Africa was to overstay his permit by 37 days.
Hopefully the judge will see through the smokes and mirror tactics of DHA, when he makes his ruling known on Monday. Hopefully he will not only order that the two families are to be re-united immediately but also set aside the entire Directive 9. It seems that the pressure by the media and the courts will bring some reason back to DHA, which would be a great testimony for the young South African democracy. DHA is spinning out of control at present and needs to be reigned in, back to common sense.
The courts decision will be made by Monday, 30.6.2014.