Judgment reserved in visa appeal

2012-11-12 20:51
(Picture: AP)

(Picture: AP)

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Bloemfontein - The Supreme Court of Appeal (SCA) reserved judgment on Monday in an appeal by Mangosuthu Buthelezi and Mosiuoa Lekota in the visa matter pertaining to the Dalai Lama.

During argument, Appeal Court Judge Robert Nugent asked why a visa application for an international figure could take several months to be processed.

"How many months can people expect to wait?" Nugent asked the department of home affairs' lawyer Marumo Moerane SC during an argument about "unreasonable delay".

The SCA was hearing an appeal on whether it was unconstitutional and unlawful of home affairs to turn down a visa for the Dalai Lama last year.

"The only reasonable conclusion could be that they [the department] did not want to do anything," said Judge Malcolm Wallis.

He asked whether the matter was considered against the background of the international importance and sensitivity of the case.

Moerane submitted that the department had not deliberately obstructed the visa application.

Earlier, the Western Cape High Court dismissed with costs an application about whether it was constitutional for the government not to grant a visa to the Dalai Lama.

The Tibetan spiritual leader cancelled a trip to South Africa to attend the 80th birthday of Archbishop Emeritus Desmond Tutu on 4 October.

Tutu was outraged and said the current government was worse than the apartheid-era one.

At the time, the high court found the issue was moot because the Dalai Lama, after getting no response to his visa application, cancelled his trip.

Moerane submitted that if the Dalai Lama had not withdrawn his application, it might have been approved.

The withdrawal made it impossible for the department to make a decision.

He further submitted that the lower court had not dealt with the merits of the case.

"There is no judgment on the merits."

Moerane submitted that a court decision now would have no practical effect.

He said the government had a right to decide to determine who entered the country.

"If we look at the act, such right by government is very wide."

However, Moerane found it difficult to explain why the then minister of home affairs Dr Nkosazana Dlamini-Zuma made no time reference in her answers to the court when she was challenged on a time aspect.

"She was challenged in the realm of international politics and she said nothing of time.... why it took so long," the Bench said.

Failure of process

Moerane said the minister had been waiting on other departments, such as foreign affairs, to answer the visa application.

The SCA agreed, but urged Moerane to show it facts that supported the minister's statement under oath.

"Yes, tell us. How long do you keep applying your mind," asked Nugent.

Moerane replied there was no reason to doubt the minister's version, but acknowledged that such a process should be reasonable in every aspect.

Earlier Anton Katz, for Inkatha Freedom Party leader Buthelezi submitted the case could not be moot, because this would give the government a licence to act unlawfully in the future.

He said it was in the interests of justice that the case still be considered.

"The court must say something on how the department has done its work."

Katz submitted that the department's argument that no real decision had been made did not hold in this case.

He submitted that the "refusal" to grant the visa was unlawful and that he wanted the court to make a declaration on the "failure of process".

Max du Plessis, for Congress of the People leader Lekota, submitted that the visa application process did not meet the test supported by the Constitution.

He said the government's conduct in the case was unreasonable.

In reply, Katz submitted to the court that in other similar cases the department had informed applicants of delays and had given reasons.

"In this case, not so. Exactly the opposite: no reply," he said.

Read more on:    ifp  |  home affairs  |  cope  |  dalai lama  |  mangosuthu buthelezi  |  mosiuoa lekota  |  marumo moerane

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