February 2 2012 at 11:24

Towards the end of last year I confidently predicted that an official of the Department of Home Affairs would spend his year-end holidays compiling a crucial document for the High Court: I make a useless fortune-teller.

The court wanted the report to be completed and handed in by January 21. Instead, 10 days after it was due, a meeting was held in the chambers of Judge Dennis Davis on Tuesday, at which representatives of the department asked for another month to file the document.

The report is critically important; that’s why I diarised the due date. So while Judge Davis graciously agreed to this extension I hope he’ll be tougher if the report is not delivered by the new date, February 29.

Due to be compiled by Patric Tariq Mellett, head of immigration in the Western Cape, the report must spell out how the department instructs its officials to handle a court order involving the department, particularly when the issue is urgent.

Mellett must also explain how immigration officials are to be educated “to comply with the constitutional requirements of this country, in particular to compliance with court orders”.

You may remember that Judge Davis called for such a report following a debacle in November in which the department ignored an urgent court order. That order would have prevented the department from deporting a woman being held at Cape Town airport. Immigration officials, however, allegedly refused to accept the order, and did nothing to stop her deportation.

During the hearing that followed it was alleged that the direct boss of Hans Grobbler, the chief immigration officer on duty the day of the deportation, had effectively instructed him not to obey the order on the grounds that it was directed at the director-general and the minister and therefore, by implication, had nothing to do with officials on duty at the airport.

This and other blatant attempts at circumventing the court order led the judge to question the competence of immigration staff and to remark on their “serious lack of education” on how to implement the law and safeguard legal rights.

He said the security services at the airport required “significant education as to the implications of a court order and the legal process”, and that the Department of Home Affairs itself, like every other government department, “must follow the principles of the rule of law”.

In my experience and that of many people who come into contact with this department, the judge’s comment is particularly appropriate since Home Affairs officials are notorious for behaving as though they are above, or certainly outside, the law.

Which brings me to another interesting development this week arising from the November case. A special hearing was called after the woman was deported to consider whether Grobbler had acted in contempt of court. The judge concluded Grobbler had acted wrongly and improperly but that there wasn’t evidence to find him in contempt of court.

Now that could change. Grobbler claimed he could in any case not have prevented the deportation because the order arrived at 4.40pm, by which time the plane had already left.

But lawyers acting for the deported woman have since obtained an affidavit from a senior official at Cape Town airport who said the plane closed its doors at 5.05pm and took off at 5.15pm.

Attorney Gary Eisenberg sent these documents to Judge Davis because of the significant discrepancy they seem to show in relation to Grobbler’s evidence. This week the judge forwarded the relevant documents to the director of public prosecutions to decide whether to take action.

Many readers will know of the department’s recent decision that passenger liners may no longer dock at the V&A Waterfront in Cape Town but will be rerouted to the harbour to “ensure proper immigration security”. The decision was not well received by Cape Town tourism and other sectors, but the department stands firm. According to its official statement, the move followed a security assessment and was part of efforts “to reorientate the Department of Home Affairs towards a security paradigm to enable it to take its rightful place within the justice and crime prevention cluster”.

My argument would be that there’s a prior reorientation necessary here: the department must urgently show that it is orientated towards the rule of law, obeying the orders of court and complying with the constitution. That’s one reason why Mellett’s report is so crucial.


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