Thusi v Minister of Home Affairs and Another and 71 Other Cases

• Jurisdiction: South Africa

Thusi v Minister of Home Affairs and Another and 71 Other Cases
2011 (2) SA 561 (KZP)

2011 (2) SA p561

Citation	2011 (2) SA 561 (KZP)
Case No	7802/09 and 71 others
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	Wallis J
Heard	September 15, 2010; September 27, 2010; September 29, 2010
Judgment	December 23, 2010
Counsel	D Sridutt (heads of argument prepared by GD Harpur SC and D Sridutt) for the applicants.; RBG Choudree SC and J Henriques for the respondents.

D Flynote : Sleutelwoorde

Administrative law — Administrative action — Review — Grounds — Failure to take decision — Principles governing common-law mandamus of equal application to review under s 6(2)(g) of Act — Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g). E

Administrative law — Administrative action — Review — Grounds — Failure to take decision — If right to relief falls away because decision taken, then no longer legal basis for other relief to be granted — Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g).

Costs — Generally — Indemnity principle — Indemnity principle, viz rule that F costs awarded to successful party to indemnify her for her expenses in having to initiate or defend litigation, and that only amounts actually paid or liable to be paid to present case recoverable as costs — Exception to strict application of rule where court may grant order of costs to successful party if (a) litigant is indigent and seeking to enforce constitutional rights against an organ of State; (b) legal representative acts for no fee and G accepts liability for all disbursements; and (c) litigant agrees that legal representative will be entitled to benefit of any costs order made in her favour.

Headnote : Kopnota

The principles governing the common law mandamus are of equal application to H a review under s 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000. In this regard, where a review is based on a failure to take a decision, if the right to that relief falls away because the decision has been taken, then there is no longer a legal basis for other relief to be granted. (Paragraphs [42] — [43] and [45J at 578B – 579B and 579G – H.)

Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 provides at 488 that I 'costs are awarded to a successful party in order to indemnify him for the expense to which he has been put through having been unjustly compelled either to initiate or to defend litigation as the case may be. . . . Speaking generally, only amounts which the suitor has paid, or becomes liable to pay, in connection with the due presentment of his case are recoverable as costs. But there are exceptions.' (Paragraph [97] at 604C – D.) J

2011 (2) SA p562

A An exception to the strict application of the indemnity principle, where an order for costs may be granted in favour of a successful applicant, is where:

(a)

the litigant is indigent and is seeking to enforce constitutional rights against an organ of State; and

(b)

the legal representative acts on his or her behalf for no fee and accepts liability for all disbursements; and

(c)

B the litigant agrees that the legal representative will be entitled to the benefit of any costs order made by the court or tribunal in his or her favour. (Paragraph [111] at 611F – H.)

Cases Considered

Annotations:

Reported cases C

Southern Africa

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to

Cele v South African Social Security Agency and 22 Related Cases 2009 (5) SA 105 (D) (2008 (7) BCLR 734): referred to

City Real Estate Co v Ground Investment Group (Natal) (Pty) Ltd and Another 1973 (1) SA 93 (N): referred to D

Costello v Registrar of the High Court, Salisbury, and Another 1974 (3) SA 289 (R): referred to

Els v Weideman and Others 2011 (2) SA 126 (SCA): referred to

Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O): dictum at 798C – H applied E

Hameva and Another v Minister of Home Affairs, Namibia 1997 (2) SA 756 (NmS): distinguished

Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 (SCA) ([2003] 2 All SA 223): distinguished

Jonker v Schultz 2002 (2) SA 360 (O): referred to F

Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1 All SA 745): followed

Matiso and Others v Minister of Defence 2005 (6) SA 267 (Tk): referred to

MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) ([2006] 2 All SA 455): considered

Minister for Justice and Constitutional Development v Nyathi and Others 2010 (4) SA 567 (CC): distinguished G

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033): dictum in para [129] considered

Moll v Civil Commissioner of Paarl (1897) 14 SC 463: dictum at 468 H considered

Moseme Road Construction CC and Others v King Civil Engineering Contractors (Pty) Ltd and Another 2010 (4) SA 359 (SCA): referred to

Ndlovu v Minister of Home Affairs and Another 2011 (2) SA 621 (KZD): referred to

Norman Anstey & Co v Johannesburg Municipality 1928 WLD 235: dictum at 241 – 242 considered I

Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) (2008 (9) BCLR 865): distinguished

Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation and Others 2010 (4) SA 242 (SCA): referred to

Payen Components South Africa Ltd v Bovic Gaskets CC and Others 1999 (2) SA 409 (W): referred to J

2011 (2) SA p563

Pharmaceutical Manufacturers Association of SA and Another: A In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): referred to

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634E – 635C applied

Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A): dictum at 863 applied B

Price Waterhouse Coopers Inc and Others v National Potato Co-Operative Ltd 2004 (6) SA 66 (SCA) (2004 (9) BCLR 930): considered

Price Waterhouse Meyernel v Thoroughbred Breeders' Association of South Africa 2003 (3) SA 54 (SCA) ([2002] 4 All SA 723): referred to

S v Beyers 1968 (3) SA 70 (A): referred to C

S v Khanyile and Another 1988 (3) SA 795 (N): referred to

Sibiya v Director-General: Home Affairs and Others, and 55 Related Cases 2009 (5) SA 145 (KZP): referred to

Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) (2007 (3) BCLR 300): dictum in para [29] considered

Taylor v Mackay Bros and McMahon Ltd 1947 (4) SA 423 (N): referred to

Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467: dictum at 488 applied D

Van der Merwe v National Director of Public Prosecutions and Others 2011 (1) SACR 94 (SCA): referred to.

England

Attorney-General v Times Newspapers Ltd [1991] 2 All ER 398 (HL): referred to E

M v Home Office [1993] 3 All ER 537 (HL): referred to

Teasdale v HSBC Bank plc [2010] 4 All ER 630 (QB): applied.

Unreported cases

Rogers v Hendricks (CPD case Nos 1555/04 and 9471/06, 15 September 2006): referred F to

Zeman v Quickelberge and Another (LC case No C45/2010, 23 August 2010): considered.

Statutes Considered

Statutes

The Promotion of Administrative Justice Act 3 of 2000, s 6(2)(g): see Juta's Statutes of South Africa 2009/10 vol 5 at 1 – 266. G

Case Information

Applications for, inter alia, orders that the second respondent register an applicant's birth, or issue to an applicant an identity document.

D Sridutt (heads of argument prepared by GD Harpur SC and D Sridutt) for the applicants. H

RBG Choudree SC and J Henriques for the respondents.

Cur adv vult.

Postea (December 23). I

Judgment

Wallis J:

Introduction

[1] The operations of the Department of Home Affairs in relation to the issue of identity documents — at least in KwaZulu-Natal — are beset by problems. These flow from a variety of causes. An affidavit delivered on J

2011 (2) SA p564

Wallis J

A behalf of the Department identifies these as lack of capacity; inadequate systems; changes in procedures relating to applications for the issue of identity documents; the volume of applications and the need to conduct proper investigations in respect of many applications, particularly those involving a late registration of birth. Lack of capacity is explained as B encompassing insufficient staff, fraud and corruption. I would add, because this was not disputed, that it includes incompetence and inefficiency on the part of existing staff. In order to minimise fraud and corruption, access to the Department's database has been restricted, but this occasions bottlenecks. In addition, prior to April 2009, no systems were in place to keep track of applications, whether for the late C registration of births, the first issue of an identity document or the issue of an amended or replacement identity document.

[2] These bureaucratic problems occasion considerable frustration to people seeking the issue of identity documents, whose applications are not dealt with within the target period of two months identified on the D Department's website. Judging by the cases before me, those who are particularly affected are people who are relatively unsophisticated; those who lack underlying documents because their parents did not register their births; and generally those who lack the resources in terms of time, money and knowledge to deal with bureaucratic incompetence and delay E and to secure the resolution of the problems they occasion.

[3] It is people such as these who are the applicants in the steady stream of cases that have come before the High Court in this province in the past two years. Their ability to bring legal proceedings has been facilitated by firms of attorneys who...