Minister Aaron Motsoaledi: Legal Reckoning for Government Negligence in Immigration Case

In a significant legal development, the Constitutional Court in South Africa has delivered a stern judgment that mandates Home Affairs Minister Aaron Motsoaledi and Director-General Livhuwani Makhode to personally bear the financial burden of some of the legal costs incurred by Lawyers For Human Rights (LHR). This ruling stems from what the court deemed to be the “appalling” conduct of these government officials in a case concerning the rights of undocumented immigrants. In the subsequent sections, we will delve into the details of this judgment, highlighting the reasons behind it, the implications it carries, and the context of the case.


The Background: This legal saga revolved around a critical issue, namely, the rights of undocumented immigrants in South Africa. The Constitutional Court had previously ruled that certain sections of the Immigration Act were unconstitutional, granting Parliament a 24-month period to rectify the legislation. During this time, individuals arrested on charges of illegal presence in the country were to be brought before a court for an inquiry into the justification of their detention. However, the remedial legislation was never enacted, causing a cascade of issues, with detainees being released or detained for extended periods, contrary to the court’s mandate.


The Court’s Ruling: The Constitutional Court, in its recent judgment, made it clear that it lacked the authority to extend a deadline or suspension after it had expired. Despite this clear stance reiterated in five previous judgments, Minister Motsoaledi and Director-General Makhode took the perplexing step of seeking an extension of the Constitutional Court ruling without prior notice to LHR, the organization representing the interests of undocumented immigrants.


The judgment, authored by Judge Steven Majiedt, does not mince words. It lambasts the behavior of the minister, director-general, and their former legal representative, Adv Mike Bofilatos, in no uncertain terms. Adv Bofilatos is particularly singled out for making “inexplicable” ex parte applications, that is, applications made without the presence of the opposing party. One was made to the high court, and the other to the Constitutional Court. Judge Majiedt considered this behavior so egregious that he barred Adv Bofilatos from claiming any fees for the case, an exceptionally rare step in the legal world.


Criticizing Conduct: Judge Majiedt found that the conduct of the applicants, Minister Motsoaledi and Director-General Makhode, had been astonishingly subpar. Their legal team’s vigorous opposition to LHR’s application to intervene and their disregard for the court’s previous judgments were highly censured. There was no hint of an apology for their neglect of constitutional duty and the deplorable state of affairs surrounding the undocumented immigrants’ rights.


Furthermore, the judge found the explanations offered by the director-general, such as blaming delays on the COVID-19 pandemic and a fire at Parliament, to be wholly inadequate. These events occurred long after the 24-month deadline had passed. Another excuse, attributing the delays to Members of Parliament’s focus on national elections in 2019, was viewed as an acknowledgment that re-election campaigning took precedence over fulfilling their constitutional duties. This lack of accountability deeply troubled the court.


Personal Responsibility: In an attempt to mitigate the consequences of their actions, both the minister and director-general issued apologies. Minister Motsoaledi claimed to have had no prior knowledge of the application and expressed his anger upon discovering it, emphasizing that he was astounded that it had been brought ex parte. He also contended that the steps taken to effect legislative amendments had not been fully explained and that he had taken the drastic step of firing his legal team.


The director-general also offered an apology, citing a failure to properly apply his mind to the matter. Both officials requested permission to withdraw the application.


Opposing Views: In response to these apologies and withdrawal requests, Lawyers For Human Rights argued that these excuses were untenable. They urged the court not to permit the withdrawal of the application but rather to intervene and address the constitutional defects stemming from the ongoing issue. Meanwhile, Advocate Bofilatos, the former legal representative, maintained that he had consistently acted properly and that any mistakes were merely errors in judgment.


Implications of the Judgment: The judgment by the Constitutional Court carries far-reaching implications. It not only underscores the court’s commitment to upholding the rule of law but also serves as a stark reminder that public litigants, especially those in positions of authority, are held to a higher standard when it comes to respecting the law and individual rights. The court’s decision to deprive legal practitioners of their fees serves as a tangible consequence for their abysmal conduct, setting a precedent for holding lawyers accountable when they fail in their duty to represent clients professionally.


Moreover, the ruling sends a clear message about the importance of timely and accountable governance. It highlights the dire consequences of government officials neglecting their constitutional duties, and it serves as a call for transparency and accountability in the legislative process. The Constitutional Court’s demand that Parliament enact remedial legislation within 12 months reflects its unwavering commitment to safeguarding constitutional rights and ensuring justice for those affected by the delays.


In a remarkable legal judgment, the Constitutional Court in South Africa has held Home Affairs Minister Aaron Motsoaledi and Director-General Livhuwani Makhode personally responsible for a portion of the legal costs incurred by Lawyers For Human Rights due to their conduct in a case concerning undocumented immigrants’ rights. The court’s scathing rebuke of their behavior and the consequences imposed upon them underline the importance of respecting the rule of law, especially for public officials. This ruling is not only a milestone in South African jurisprudence but also a significant step towards ensuring timely and accountable governance and safeguarding constitutional rights.

Share this post

Request a Quote - CMS, CRM, ERP & Custom Development

Request a Quote - Web Design & Development


Chat to Us on Whatsapp

× Chat Now