Home Affairs in final bid to fight order to reopen refugee office

Source: Ernest Mabuza – Times Live, 08/10/2015

The Department of Home Affairs has filed an extraordinary and
unprecedented application before the Constitutional Court.


This in its ongoing battle to resist reopening the refugee reception
office in Port Elizabeth‚ as it was ordered to do by the Supreme Court
of Appeal in March.


The department wants the Constitutional Court to reconsider an order
it made on August 5 dismissing the department`s application for leave
to appeal against the Supreme Court of Appeal judgment.


Its application was dismissed after the department failed to meet the
June 26 deadline set by the Constitutional Court to file its
submissions.


The department filed its submissions on July 29 and asked the court to
condone the late filing but the court dismissed both its condonation
application as well as its application for leave to appeal.


In the application for reconsideration‚ the court is called upon to
decide whether to hear the matter it had already judged‚ thus
deviating from the legal doctrine of res judicata‚ which bars
continued litigation of a matter that has been decided. It is also
called upon to decide whether failure to observe its rules should be
tolerated.


The department said its failure to file its submissions to the court
on time was due to the "miscommunication" between the State Attorneys`
offices in Johannesburg and Pretoria.


Home Affairs director-general Mkuseli Apleni said that the directions
to file submissions were never passed to him or anyone within his
department in time to respond.


Apleni said it was profoundly unjust for protracted litigation between
the parties on matters of grave national importance to be determined
on the conduct of one of the parties` legal representatives.


The matter has its genesis in 2011‚ when the Somali Association of SA
challenged Apleni`s decision of October 2011 to close the Port
Elizabeth refugee reception office.


Two high court decisions set aside Apleni`s decision and in March this
year‚ the SCA also dismissed the department`s appeal. This prompted
the department to approach the Constitutional Court to apply for leave
to appeal.


In his affidavit before the court filed last month‚ Apleni said the
circumstances of this case were exceptional and warranted the
reconsideration of this court`s order in the interests of
justice.


However‚ the Somali Association of South Africa (Eastern Cape)
"strenuously" opposed the application for the reconsideration and
setting aside of the August 5 order.


David Cote‚ an attorney employed by Lawyers for Human Rights and who
represents the association‚ said granting the department`s application
undermined the association`s entitlement to finality in this
litigation and the effective vindication of its rights.


The court has not issued any directions in this matter.