There are no prospects of success for Home Affairs` appeal application, according to the respondents.

The Helen Suzman Foundation has insisted that Home Affairs Minister Aaron Motsoaledi’s decision to terminate the Zimbabwean Exemption Permit (ZEP) programme without formal consultation was not in line with the law.

The full bench of the Gauteng High Court in Pretoria heard the Department of Home Affairs’ leave to appeal application on Monday.

Motsoaledi and Home Affairs director-general Tommy Makhode, who are the applicants in the litigation, are seeking an order to argue its case before the Supreme Court of Appeal (SCA).

This follows the high court’s 28 June ruling which declared the termination of the ZEP unlawful and set it aside.

In their judgment, Judges Colleen Collis, Mandlenkosi Motha and Gcina Malindi ruled the matter go back to Motsoaledi for reconsideration due to the minister’s failure to conduct a proper public participation process.

The court also declared, pending the process, the ZEP would remain valid for the next 12 months.

‘Zero prospects of success’

Advocate Carol Steinberg, counsel for the Helen Suzman Foundation, argued during court proceedings that Motsoaledi failed in his duty to open formal discussions with permit holders before making a decision on the non-renewal of the ZEP in November 2021.

“It is common cause that this decision impacted on the lives of 178 000 people and their children and of course, all the South Africans whose lives are inextricably bound up with the 178 000 and in law there is a watertight obligation to hear what affected people have to say before a decision impacting on their lives is made. 

“It is the first principle of natural justice. It’s common cause that the minister did not in fact hear from the affected people before making the decision {to terminate the ZEP] … he called for representations later,” she told the same full bench on Monday.

Steinberg said it did not matter whether the Promotion of Administrative Justice Act (PAJA) or the principle of legality was at play in the case.

“There is no court in South Africa that would ever say the minister would make a decision which profoundly impacts on the lives of many people without hearing from them first. This affects people’s whole lives, where they live, where their children go to school [and] how they earn a living,” the advocate said.

Earlier, Advocate William Mokhare had argued the court erred in its ruling by relying on the PAJA in determining that Motsoaledi did not afford ZEP holders a reasonable opportunity to make representations.

Watch proceedings below:

Steinberg, however, said there were no “realistic” prospect of success regardless of Home Affairs’ arguments.

“A mere possibility of success, an arguable case, or one that is not hopeless is not enough. In short, our argument is that there are actually zero prospects of success in this case,” she continued.

“The SCA, on repeated occasions, has frowned upon high courts granting leave to appeal where there is just no prospect of success and our submission is that there really can’t be.”

She said there was “no evidence” Motsoaledi applied his mind to this case and asked a punitive costs order against the minister.

“If there should be a genuine, non-frivolous challenge to the constitutionality of a law or state conduct, it is appropriate the state bear the costs if the challenge is good. 

“So … there can never be a chilling affect on government in defending its conduct or a law because the state has a budget and needs to have a budget to defend its conduct or laws,” Steinberg said.

‘Minister has made up his mind’

Advocate David Simonsz, representing the Consortium for Refugees and Migrants in South Africa (Cormsa), supported Steinberg’s submissions, saying there were no compelling grounds to grant the appeal.

“Even on the principle of rationality, which is a common cause, there needs to be a fair opportunity to affect the mind of the decision-maker. 

“The minister has been quoted on record as indicating that he has made up his mind on this issue,” the advocate told the court.

Simonsz argued the court’s judgment was not intended to allow the ZEP to continue indefinitely.

“The court sent this decision back to the minister,” he said, adding Home Affairs should reconsider the matter within the 12 months period afforded by the court in its initial ruling.

“The path is a clear one… what the minister should do is take the opportunity afforded to him by this court to follow a lawful process and make whatever decision he chooses to make once he takes into account the just and proper submissions and representations of those affected. That is the proper way forward.”

Judgment reserved

Meanwhile, Collis said the court’s judgment would be reserved and handed down after recess period.

“We are going to reserve our judgment on those two applications for leave to appeal, and then we will hand it down as soon as it is ready. 

“Parties must bear in mind that the court is now on recess, so we accommodated the hearing of this application because you had set through the request during term already, but we will only hand down the judgment once the new term commences. We will advise the parties, and it will be uploaded onto case lines,” she said.

No ID, no life. This is the fate of many children in South Africa who are victims of their parent’s IDs being “blocked” by the Department of Home Affairs.

Their births are never registered or are registered very late; their parents cannot access child support and other grants; they are excluded from or discriminated against at school; they struggle to access health care and immunisation programmes. Without an identity number they are “invisible” to the state.

These are the submissions of the Children’s Institute at the University of Cape Town, represented by the Centre for Child Law, admitted as an amicus curiae in a case to be argued this week in the Pretoria High Court.

In the matter, Lawyers For Human Rights (LHR) is representing more than 100 people who have fallen victim to an “arbitrary” ID blocking practice by Home Affairs (DHA).

In December 2020, the Minister of Home Affairs revealed in Parliament that DHA was dealing with more than 800,000 blocked ID cases, involving alleged duplicates and what it claims are “fraudulent” IDs.

In September 2023, DHA admitted in its answering affidavit that ‘these cases have become more and more as the years went by”, and that in May 2023, the Minister had agreed to remove blocks from 1.4-million people’s IDs. However, approximately 700,000 IDs remained blocked at end of July 2023.

LHR said in the past five years it had assisted more than 500 people with blocked IDs, the majority of them poor, black South Africans. None were aware of their blocked IDs until they attempted to access a service and discovered the issue “quite literally by surprise”.

None received prior notice of DHA’s intention to block their IDs,or investigate their status, nor were written reasons for the decision provided.

In the application, which is being opposed by the Minister and the department, LHR asks for an order declaring ID blocking unlawful and unconstitutional, an order that all IDs be unblocked, and and order that the department follows “just administrative action”.

The harmful impact of this on children is addressed in an affidavit by senior researcher Paula Proudlock at the Children’s Institute, using case studies of children (and their parents) which the institute is currently assisting.

She said a study by UNICEF estimated that in 2017 two million eligible children had been excluded from accessing social grants in South Africa. The absence of a birth certificate or an ID card for the caregiver was the primary reason for this.

“Our own analysis of survey data revealed that children without birth certificates are more likely to be excluded from other government services, including social grants, health care, immunisation and education.”

Proudlock said the institute represented three classes of children: those who had no birth certificates, because their parent’s ID was blocked; those who had birth certificates but could not apply for ID cards when they turned 16, because their parent’s ID was blocked; and those between the ages of 16 and 18 who had IDs but whose IDs were blocked when their parent’s ID was blocked.

The majority fell into the first category; without a birth certificate the children had no access to their right to a name and nationality.

“Ultimately, they suffer significantly when they have no say or choice in the matter. It is a violation of their rights to participate in decisions that affect their rights and to have their best interests considered.”

Proudlock said the majority were poor, black and African, and were “invisible to the DHA”.

‘Like someone who does not exist’

In a supporting affidavit, NZ (name withheld to protect the identity of her children) said she is a South African citizen who gave birth to triplets in July 2019 at a Durban hospital. They were born premature. When she went to DHA offices in Umgeni Road to register their births, she was advised that her ID was a “duplicate” �` that she was sharing it with another person. The official told her that she was “like someone who does not exist”.

She was advised to fill in another application for an ID and submit her fingerprints and photos and told she would receive a call when the investigation was completed, but it could take at least six months.

In the subsequent months, the bank ATM swallowed the SASSA card (she was receiving a child support grant for her elder daughter), and, with the discharge from hospital of the triplets imminent, a friend raised concerns with a doctor about how she was going to cope financially.

The doctor organised colleagues to donate money, clothes and nappies.

But her situation remained dire. She was evicted from her home in January 2020. In February, a dietician at the hospital took up her cause with the DHA. But there was little progress and, at one point, a social worker advised her to give up the babies for adoption.

In November, the institute managed to arrange child support grants for the children from SASSA and, finally, the triplets’ births were registered when they were two years old.

“It is unlikely her case would have been resolved if she had not gone to the media and if the hospital dietician had not been advocating on her behalf by emailing DHA and reporting the matter to the public protector,” Proudlock said.

Blocked for over a decade by Home Affairs error

Citing another example, Proudlock said a 12-year-old girl, living with her paternal grandmother in the Eastern Cape, still had no birth certificate because the ID of her mother, who Is a South African citizen, had been blocked for over a decade for being a duplicate.

The “duplication” was caused by a DHA error when two young people, both with the same name, applied for the IDs at similar times in 2002.

“We have been able to ascertain that the East London DHA office issued IDs to both, but swapped their dates of birth by mistake. One applied for a correction and was issued with a new ID with her correct date of birth. At this stage, a ‘shared ID profile’ appears to have been created. And DHA now only has one FN (name withheld) on their system,” she said.

Proudlock said the child had been sent to the Eastern Cape because, without a birth certificate, her mother could not enrol her at a school in Cape Town.

It was easier to get admission to rural schools without a birth certificate.

“She has thus grown up separated from her mother, father and younger siblings”.

No proper recourse

Regarding children who have birth certificates, but cannot get an ID because their parent’s ID is blocked, Proudlock said many of these children could not write matric, receive their matric results or register for tertiary education.

They cannot open bank accounts, register their cellphone or apply for NSFAS funding.

“Their chances of becoming employable are significantly reduced. And some become depressed and suicidal, with no hope,” she said.

Children who have IDs which get blocked at the same time as those of their parents suffer the same consequences. In addition, they cannot apply for learner’s licences or driver’s licences, apply for social grants for themselves, or register any babies born to them.

“The cycle of harm is perpetuated … many mothers we have assisted only became aware that their ID was blocked when they attempted to give notice of the child’s birth. They received no prior notice.

“They are given unclear oral explanations and no written reasons. There are no prescribed forms to lodge an inquiry or start an investigation,” Proudlock said.

“In most cases, our clients were victims of identity fraud or DHA clerical errors and yet were summarily stripped of their citizenship and identity without notice or explanation and are then required to bear the onerous burden of re-proving their birth, identity and citizenship. If they were orphaned or abandoned when they were a child, which many of the mothers we are assisting were, then it is impossible to produce the proof DHA demands.”

Supporting the relief sought by LHR, the institute said it also wanted statistics on the number of children adversely affected by ID blocking, as the numbers DHA has provided are for blocked adults and do not account for the thousands of children whose lives are also on hold.

The hearing has been set down for 20 and 21 September.

• Aaron Motsoaledi says his department will operate more efficiently with a staff contingency of 60%. 

• The Department of Home Affairs currently operates at 39 to 42% capacity.

• Motsoaledi says backlogs may never be solved if the department does not improve its operational capacity.

Home Affairs Minister Aaron Motsoaledi says the Department of Home Affairs needs a staff contingency of 60% to operate optimally - but, currently, it falls short of this target, despite pleas to the National Treasury. 

Motsoaledi appeared before Parliament`s Portfolio Committee on Home Affairs on Tuesday, during which his department gave an update of backlogs with regard to visas and permits. 

MPs pressed the minister on these backlogs - and, in response, he said the department needed more money and staff. 

He said the department had previously operated at 39% of staff. After a business case was made to the National Treasury, 700 staff members increased the percentage to 42%. 

The minister said he pleaded with President Cyril Ramaphosa to add more funds and staff to improve the department`s operations.

`We are running a department with a staff complement of 39% only - and, after reporting the business case, Finance Minister Enoch Godongwana moved us from 39% to at least 42%. We have made a presentation and a plea to the president that we will be very happy if the staffing at the Department of Home Affairs can be 60%. We won`t reach where we have to, but it will get us somewhere,` said Motsoaledi.

The minister said most of the department`s budget included the issuing of identity documents, birth certificates and passports for South Africans. 

He said because the finances of the department focused on serving internal matters, issues like migration suffered. 

`We have no other way of solving the migration issue unless we get more money. As we deal with backlogs and issues, we need to look at the global picture,` he said. 

Motsoaledi said another issue that added to the burden of visa backlogs was `forum shopping` by applicants. 

South Africa, unlike other countries, offers about 17 different types of visa applications, including relative and spousal visas. 

Motsoaledi said his department often had to deal with the same individuals who applied for different visas to gain entrance or to stay in the country. 

Motsoaledi said:

When you ask us why we have so many backlogs, you have to consider the issue of forum shopping. You are dealing with the same person from one country 10 times or more because of forum shopping. They try one type of visa and, if they are unsuccessful, they try another. So, we keep dealing with the same person, and there is no way there will be no build-up of backlogs. We might have to revisit the legislation and why it allows this type of thing.

`We have 17 types of visas, and we are being attacked on serious backlogs on visas, and people say this threatens the economy.`

On the issue of visas, the committee was given a breakdown of visa application backlogs, which include various types of categories, and it amounts to 74 000. 

The highest backlog in applications - 35 000 - is visas of people who have spouses in South Africa. They want to come and live in the country and seek employment as well.

The minister said the backlog in this section was because the awarding of the visa had to be co-approved by the Department of Employment and Labour. The labour department needs to ensure that no South African is available to do the job, and then approve the application. 

Motsoaledi said this process resulted in the procedure being backlogged because general work visas can only be issued once the labour section is approved.

Italy is trying to deter an influx of migrants with a set of new measures.

10 000 migrants arrived on the shores of Lampedusa island last week, more than doubling the island`s population.

Illegal immigrants may soon be detained for up to 18 months while they await repatriation.

The Italian government, struggling with a surge in migrant arrivals, will pass measures on Monday to lengthen the time migrants can be held and to ensure more people who have no right to stay are repatriated, officials said.

The move comes after almost 10 000 migrants reached the southern Italian island of Lampedusa last week, dealing a blow to the credibility of Prime Minister Giorgia Meloni, who won office last year vowing to curb illegal immigration.

In a bid to regain the initiative, the cabinet was set to lengthen the time migrants awaiting repatriation can be detained to up to 18 months from three at present, officials said.

Ministers will also approve the creation of more detention centres in isolated areas.

Under Italian law, migrants facing repatriation can be held if they cannot be immediately expelled.

More than 127 000 migrants have arrived in Italy so far this year, according to government data, almost double the figure for the same period of 2022.

Officials say a majority of migrants head to Italy for economic reasons and are therefore not eligible for asylum.

However, Rome only has repatriation agreements with some of the countries whose migrants come ashore in Italy, and even when there is a bilateral deal is in place, it can take months to send people home.

Highlighting the difficulties, data produced by the OpenPolis think-tank shows that only 20% of those targeted by a repatriation order left the country between 2014 and 2020.

Past efforts to hold migrants have also largely failed, with those detained repeatedly breaking out of centres and often heading straight to wealthier northern European countries.

The Italian parliament in April approved measures to create new migrant centres for people waiting to hear the outcome of asylum applications as well as more detention facilities for those facing expulsion.

As part of the package, it set aside around €20 million (about R400 million) over two years.

Meloni, who put tackling illegal immigration at the forefront of her successful election campaign last year, visited Lampedusa on Sunday with European Commission President Ursula von der Leyen and asked Brussels to do more to help.

Von der Leyen promised a 10-point EU action plan to relieve the pressure, but the measures appeared similar to previous initiatives that have failed to make much impact.

The Department of Home Affairs is now giving appointments for refugees to apply for asylum only in 2025, even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country. 

The legal team for a Somali family that has been harassed by law enforcement, refused medical assistance and given a date to apply for asylum 18 months down the line, has called on the United Nations High Commissioner for Refugees to intervene and support their court case against the Department of Home Affairs.

“We are legal ghosts,” Abdullahi Osman Shale said in an affidavit explaining the suffering inflicted on his family by the Department of Home Affairs.

The department is now giving appointments for refugees to apply for asylum only in 2025 �` even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country.

Osman said his wife, Fatuma Salah, and his brother, Absame Ahmed Osman Shale, had suffered abuse since arriving in South Africa. 

The family came to South Africa after fleeing violent clashes in their hometown in wartorn Somalia.

Attorney Siseko Jali, who acted for the family, said he had more than 1,000 clients who are all desperate for an asylum application date.

“We are just going around in circles,” he said.

“As soon as we get one appointment system implemented by Home Affairs declared as unconstitutional they implement one that was previously interdicted by the court. We really need the United Nations High Commissioner for Refugees to step in here and help,” Jali said.

Refugees left vulnerable

The legal team for the family, led by advocate Lilla Crouse SC, obtained an agreement from Home Affairs that the family, who arrived in Gqeberha in December 2022, would be given an opportunity to apply for asylum on Friday, 21 July. However, this was refused and they have been allowed to stay in SA until their appeal is heard.

Osman said they were not only bringing the court case in their own interest, but also on behalf of many other asylum seekers who are “sitting in the same untenable circumstances as ourselves and who are unable or unaware of their right to approach [the court].

“These similarly situated persons are vulnerable as they more often than not lack means, support systems, family, friends or acquaintances in South Africa.”

He said many of his fellow refugees had a very “limited understanding of the Republic’s legal system. As a result of a lack of resources, they would rarely have access to competent lawyers and know which non-governmental organisations would be willing to assist them.

“This makes them more vulnerable and they are often propositioned for bribes, robbing them of what may be left with or what they brought with them.”

Osman said that being unable to submit an application for asylum made it impossible for him to find a job, access health services or open a bank account as he did not have any of the required documentation.

“We, like nearly all asylum seekers, are poor and desperately need to earn an income to sustain ourselves.”

He said they were not seeking an order that they must be given asylum, but merely that they be given an opportunity to submit their applications and be issued with papers that will legalise their stay while they wait for the outcome of their applications.

The Refugee Act states that an application for asylum must be made within five days after arrival in South Africa. But in practice, Osman said they cannot go to the Refugee Reception Office but “are forced to wait for more than a year-and-a-half” just for the opportunity to present themselves and ask for asylum.

“Access to a fair and efficient refugee status determination procedure is an essential safeguard to protect refugees and asylum seekers from abuse in South Africa. State parties to the Refugee Convention are required to provide access to such a procedure. I am advised that South Africa is a state party to the Refugee Convention and therefore has an obligation to provide a fair and efficient refugee status determination procedure,” he said.

Osman said the Department of Home Affairs, “through their inordinate delays in providing us access to the South African refugee system, have in fact violated several of our rights enshrined and protected in the Bill of Rights in the Constitution of the Republic”.

At the time of their application, asylum seekers who could access the Refugee Reception Office in Gqeberha were given appointments for April 2025.

“The current system for asylum seekers in Gqeberha, and possibly elsewhere in the Republic, is unable to cope with the number of persons applying and is thus fatally flawed and consequently unlawful. 

“Vulnerable asylum seekers, like us, must now wait for an unreasonable period before their applications for asylum seeker permits are considered. In the meantime, asylum seekers have nowhere else to go as they cannot return to their country of origin and are forced to remain in the Republic unlawfully and illegally,” he said.

In the second part of his court application, to be heard at a later date, Osman is seeking an order to have the system dealing with asylum seekers declared unlawful and unconstitutional. 

In this part of the application, the court will also be asked to order the department to compile a report on the current state of the asylum seeker system for scrutiny by a judge and to devise a lawful and constitutional system.

Salvaging a life from the ashes

Osman was born in Somalia on 1 January 1990. He came to South Africa in 2022 to apply for asylum and he, his wife and his brother arrived in the country on 24 October 2022.

“Throughout the years, millions of Somalian civilians have been internally displaced, and millions have fled the civil war and have sought refuge in safer countries.

“For many years, my family moved from one place to another within Somalia to find safety. Safety in Somalia is illusory because in every city the armed groups routinely carry out indiscriminate and targeted bombings of civilians. We could nowhere find lasting safety.

“During 2022, our last place of temporary residence was bombed during a fight that broke out in Mogadishu between al-Shabaab and Somali government forces. All our belongings and supplies were burnt to ashes.

“In the aftermath of the bombings and whilst we were trying to salvage from the ashes anything that may assist us in our survival, the al-Shabaab rebel soldiers returned to the community and began to forcibly take all male survivors and forced them to join the armed group. While this was happening, we went into hiding.

“There was no longer any place in Somalia that could provide us with safety as the civil war was beginning to intensify again. Due to this fear, we made arrangements and fled to South Africa to seek refugee status,” he said.

Osman added that when they arrived in South Africa, they received help from members of the Somali Association to trace his uncle who had fled to South Africa 15 years previously. 

“He invited us to Gqeberha where we would live with him,” he said.

“When we arrived in the Republic, our uncle advised that we needed to apply for refugee status at the Gqeberha Refugee Reception Office. However, when we reported to the said office, we were advised that asylum seekers who wish to lodge their asylum applications for the first time are required to send an email and request an appointment to apply for asylum.”

They asked a lawyer to help, but the first appointment they could get was 18 months away, in 2024.

“These appointments are a year-and-a-half in the future. This means 18 months in which we are undocumented and deemed to be illegal in South Africa, at a time when Somalia is every day in the news for yet further violent fighting. It seems that the political situation is getting worse. We cannot go back and we are illegally here.

“Our situation has worsened because [my wife] is now six months pregnant and requires constant medical attention as a result of her pregnancy. Our family support system is unable to financially support us as well as to take care of the prenatal medical needs of [my wife] for the next year-and-a-half wherein we are unable to access even the most basic of constitutionally guaranteed rights.”

He said they were afraid of being arrested because they were deemed to be illegally in the country. They were denied access to public hospitals and were unable to find work or open bank accounts. 

When their legal team asked why the appointments were so far in the future, the department responded that the Gqeberha Refugee Reception Office would remain under pressure until the Cape Town office was reopened.

“We have been legal ghosts in the Republic from the date that we came in and we will remain as such for the next 18 months,” Osman said. “We have to live a life on the run.”

He said they live in fear of the police, who often asked for bribes in return for not arresting them.

They were also refused access to state hospitals and Osman had to borrow money to seek care in the private sector for his pregnant wife.

The Department of Home Affairs has not yet filed papers responding to Osman’s legal action, but agreed to provide him with an immediate hearing for asylum.

The court has asked for the department to provide an affidavit by 31 August with an exact description of the current system to provide permits for asylum seekers, including details on when asylum seekers are given appointments and how many are waiting.

Jali said they would see what information was provided by the Department of Home Affairs and then plan on how to proceed with the court case