When government doesn't do its job and the courts don't force it to

Source: Rand Daily Mail, 15/01/2016

Like a rain storm that threatens but never actually arrives. That's
what judicial action against recalcitrant officials of the home
affairs department amounts to


Like a rain storm that threatens but never actually arrives. That`s
what judicial action against recalcitrant officials of the home
affairs department amounts to. And I make the comparison with more
than usual feeling: our tiny farming town has not had municipal
running water for more than four months. We need rain
desperately.


The legal story behind this outburst concerns Kennedy Tshiyombo, a
refugee from the Democratic Republic of Congo, who has been living in
SA for many years. Like too many others, he has close experience of
the home affairs department`s institutional culture — its punitive
inefficiency and callous disregard for the rights of the people at its
mercy.


Last November the judge presiding over Tshiyombo`s latest attempt to
gain refugee status, Ashley Binns-Ward, criticised the department`s
persistent failure to follow the rules of court or comply with court
orders.


He spoke about the "systematic dysfunctionality" of the department,
which had resulted in prejudice to the administration of justice. It
was a matter for serious concern that the law was being subverted by
the very officials employed to administer it.
He spoke of the "delinquency" of the department and recalled that many
previous judgments had warned that the virtually "institutionalised
disregard for the rules and practices of the court" by that department
could not be allowed to become the norm.


In his November judgment he ordered that Tshiyombo be given asylum,
contrary to the refugee appeal board`s finding. But certain aspects of
the department`s outrageous handling of the matter were held over
until December for argument on why he should not hold the relevant
officials personally responsible for the unnecessary costs caused. He
also wanted argument on why the department`s consistent flouting of
the law should not be referred to the public protector`s office for
investigation. Those issues were argued on December 10 and a week
later Binns-Ward delivered a decision that might disappoint human
rights activists: the court once again came very close to action, but
drew back at the last moment.


Read his decision, his remarks about the "complete indifference and
incompetence" seen in this case, and you feel certain he will order
the officials involved in the disregard of the law personally to pay
the costs that their arrogance added to the case. And equally certain
that he will refer the "dysfunctionality" of the department to the
public protector for investigation.


Yet he pulls back on the grounds that the department is hiring staff
to increase its capacity, warning that this is the last chance.


After decades of writing about the department of home affairs and its
incompetence and worse, I have no doubt that it will fail to heed this
warning, as it has so many before.


So I`m left wondering why the courts are so hesitant to call out
people responsible for such blatant abuses. Why so reluctant to show
they mean business when the courts say they are guardians of the
constitution and the bill of rights?


Over the months of this terrible drought we have repeatedly seen the
sky darken, the thunder roll, the lightning zigzag across the sky.


All seems in place for the rain to fall. Then the wind comes
up and blows everything away.


The frustration and let-down we experience each time that happens must
be rather like the frustration of human rights lawyers working with
clients at the mercy of home affairs. They hope the courts will
finally deliver on their threats to act against recalcitrant
officials, or refer the whole mess to the public protector. Judgments
roll off the bench, full of sound and fury, and these lawyers and
their clients imagine that at last justice will rain down. No luck.


The wind comes up. The threat passes. The drought continues.