Throughout the second half of 2024 Leon Schreiber was one of the most observed and often praised GNU ministers. An expert on public sector reform, Schreiber could be the antidote to the institutional entropy from which the Department of Home Affairs (DHA) has suffered for decades, or “dry rot” as a renowned organisational theorist called it.
Schreiber has not been shy in adopting a proactive approach to the implementation of change within the department he heads. Nevertheless, the reality he will have to contend with internally in 2025 and beyond is that DHA remains systematically wanting of the necessary competency to perform its duties.
Just administrative action and maladministration
Since the South African Constitution came into effect, followed by the Promotion of Administrative Justice Act (PAJA), the world of public administrators and their administrative actions has been redefined and reshaped within constitutionally and legislatively prescribed boundaries. Yet, to date, public administrators within the DHA continue to make themselves guilty of maladministration. Too often DHA officers and adjudicators are either ill-informed or indifferent to the legislative and judicial rules that prescribe their administrative conduct and decision-making.
Maladministration and misgovernment can also be attributed to, among other issues, a disregard for the administrative law principles of just administrative action. Lawfulness and procedural and substantive fairness are the three cardinal pillars that sustain just administrative action. Not only absence of bias is vital from a procedural fairness standpoint; but paramount to the principle of lawfulness is that “any public administrator must be properly qualified for a specific administrative function in order to make decisions”.
Bias, mistrust and inadequate reasons
Bias extends to the culture of mistrust which permeates the decision-making of the DHA on visa and permit applications, which places an imbalanced burden of proof on applicants. Applicants are lambasted with rejection notices generically stating their failure to submit “adequate proof”, or are rejected on the basis of the DHA’s inability to verify documents or relationships.
Most rejection notices fail to include adequate reasons as prescribed in terms of sections 5(1) and 5(2) of PAJA, frequently leading to unnecessary litigation as – even when placed on demand notice for adequate reasons – the DHA fails to comply with its mandate within the prescriptions of just administrative action.
Spousal relationships are deemed to be for the majority “purported” rather than real good faith relationships – even in the presence of long-standing marriages and children. Applications made by lawful married spouses for visas and permits are being rejected on the grounds that the “applicant failed to submit sufficient proof of financial responsibility and cohabitation” – notwithstanding the fact that the regulations only require such documentation in support of applications made on the basis of life partnerships, not to spouses who have entered into civil marriages.
The murky verification process
Financial and other documents included in applications frequently fail to satisfy the DHA’s adjudicators, to such an extent that there appears to be a parallel murky verification process which has no basis in law or statute.
The DHA’s own inability to process applications within a reasonable time, as also prescribed by PAJA, seems to have derailed and hijacked the adjudication process through a self-assumed and self-empowered verification process that is cryptic and prima facie unlawful.
Lawyers have successfully challenged in court the lawfulness of the DHA’s verification process and of the recurring absence of adequate reasons.
Furthermore, and as repeatedly placed on record with the DHA, due to global banking secrecy laws, attempts by the DHA and the Department of International Relations and Cooperation to verify banking account information directly with financial institutions overseas is unlikely to succeed. The so-called consent forms sent to applicants for these purposes by the DHA have very little value outside South Africa – particularly when these contradict local and international legislation overseas.
Institutional incompetence
In a compelling 2022 judgment the Western Cape High Court endeavoured to obtain clarifications from the DHA and the state attorneys on what exactly the verification process entailed, what its purpose was and on the grounds of which regulations it was conducted, only to conclude that “it was apparent to the court that there appeared to be some uncertainty and confusion as to exactly what such process would entail” and that “these assertions by the respondents clearly indicate the failure to properly understand and appreciate the confines of the statute and Regulations which they themselves are bound by”.
This ruling led to a substitution order on the grounds that the court found there to be on part of the DHA “delay, bias and [institutional] incompetence”.
Yet, review after review, court order after court order, the DHA persists with the same unlawful patterns, reminding one of the malaise to which Einstein referred as insanity – “doing the same thing over and over again and expecting different results”.
At the end of 2024, in the DHA’s bid to clear the backlog, an extraordinary volume of rejection notices flooded the system, reflecting a concerning pattern of inadequate, ill-informed and erroneous decisions while the verification process continued unaffected. These decisions fall wide of the mark of the test of the ratione personae or competency imposed on the public administrators responsible for those decisions which, failing the test of PAJA, are unlawful.
Empowering provisions
Naturally, the volume of applications caught in the backlog would mean that there would be a corresponding rise in rejected applications – but a point of concern remains the poor quality of the decision-making involved.
Moreover, as I had sadly anticipated, as VFS Global quickly reached its capacity limit and to accommodate the submission of appeals, in an unprecedented move, a directive signed by Director-General Livhuwani Makhode on 27 November 2024 was circulated, extending the legislatively prescribed deadline (of “10 working days from the date of receipt of the outcome”) to submit appeals until the end of March 2025.
It is worth mentioning that this directive was initially leaked and circulated as Immigration Directive 12 of 2024, signed on 20 November 2024. In its original format, Directive 12 stated that the bottleneck was due to the backlog-addressing project: “As a result of the high number of visa and permit outcomes produced as part of the visa and permit backlog project, the appointment system at VFS Global for submission of appeals applications has been constrained”.
Within a week, the DHA made a gaslit U-turn by silently replacing the directive and scapegoating VFS’s systems as responsible for this move, stating: “The Department has noted that the booking system, at VFS Global, has been experiencing problems… due to unavailability of dates.” More importantly, outside of a proclaimed state of disaster, we are, again, left questioning on the basis of what empowering provision any such directive can be effective in law.
Abuse of power
In our view, the risks of continuing to run an incompetent department and of outsourcing solutions outweigh by far the benefit of reporting the clearance of the backlog. As Professor W Erasmus once wrote: “The state administration has power, and concurrent with the possession of power, is the possibility to abuse this power… the violation of rights, through the abuse of power by the state administration is an actual reality.” DM