Ship­wrecked by in­jus­tice but cling­ing to the Con­sti­tu­tion

Weekend Witness - - Opinion - WITH­WIL­LIAM SAUN­DER­SON-MEYER

SUR­VEYS show that barely half of South Africans trust the jus­tice sys­tem, de­spite rel­a­tively few per­son­ally hav­ing been snagged in its maw. So it is a wel­come para­dox when some­one dealt only in­jus­tice by of­fi­cial­dom, some­how re­tains faith in the Con­sti­tu­tion.

Hol­lan­der Thijs van Hil­le­gonds­berg and fam­ily — wife Pa­tri­cia Poel­mann, son Ludo, and adopted chil­dren Them­bisa Masina and Jo­han Ok­to­ber — have fought for 17 years for per­ma­nent res­i­dence. Pub­lic Pro­tec­tor Thuli Madon­sela last year ruled that they were vic­tims of Home Af­fairs mal­ad­min­is­tra­tion and abuse of power, and should be granted res­i­dence by min­is­te­rial ex­emp­tion. It was not done.

As re­ported here last week, Thijs was re­cently served with a de­por­ta­tion or­der that if de­fied, as he vowed to do, would have seen him ar­rested last Sun­day. Un­able to af­ford a lawyer but with pro bono as­sis­tance from Global Im­mi­gra­tion and the Cen­tre for Con­sti­tu­tional Rights, Van Hil­le­gonds­berg pre­pared pa­pers for a stay of de­por­ta­tion and then per­son­ally ar­gued the ur­gent ap­pli­ca­tion.

Judge Tan­dazwa Ndita granted the stay, or­der­ing Home Af­fairs Min­is­ter Naledi Pan­dor to al­low Van Hil­le­gonds­berg to sub­mit a re­view ap­pli­ca­tion with any ad­di­tional doc­u­ments nec­es­sary.

The pro­tec­tor’s re­port gives a chill­ing in­sight into the murky, capri­cious na­ture of Home Af­fairs’ im­mi­gra­tion pro­ce­dures.

In 2000, Van Hil­le­gonds­berg’s tem­po­rary res­i­dence was re­newed sub­ject to a sin­gle con­di­tion — that he con­tin­ued to con­duct his wa­ter qual­ity busi­ness. Bizarrely, Home Af­fairs then in 2010 had him jailed for con­tra­ven­ing his per­mit con­di­tions by con­duct­ing his busi­ness.

The ar­rest, be­tray­ing as­sur­ances made to the pro­tec­tor that no ac­tion would be taken pend­ing her in­ves­ti­ga­tion, was ex­e­cuted with cal­cu­lated spite. It was late on a Fri­day, en­sur­ing that Van Hil­le­gonds­berg spent the week­end in jail. On the Mon­day, he was bailed and even­tu­ally the case was struck from the roll.

Then their teen son Ludo was re­fused re-en­try to SA af­ter a trip to Malaysia. This “abuse of power … trau­ma­tised a young man who ended up stranded”, writes Madon­sela, who had to in­ter­vene to fa­cil­i­tate Ludo’s re­turn.

Af­ter 68 pages of anal­y­sis of the par­ties’ claims, counter-claims and to-and-fro re­but­tals, the pro­tec­tor cuts to the nub of the fam­ily’s right to res­i­dence, the adop­tion in 2000 of their two chil­dren. Home Af­fairs never con­tests that theirs is a fam­ily unit and that the chil­dren have al­ways been well cared for. Which, in turn, ef­fec­tively negates its as­ser­tion that the fam­ily will be a drain on the state.

Madon­sela con­cludes that the fail­ure to grant res­i­dence flouts not only the Con­sti­tu­tion, but an ar­ray of in­ter­na­tional treaties to which SA is sig­na­tory, all of which “place great em­pha­sis on the pro­tec­tion of the fam­ily and that the in­ter­ests of the child are para­mount”.

“Re­gard­less of how blame should be ap­por­tioned for the non-fi­nal­i­sa­tion of this mat­ter, few would dis­agree that it needs to be fi­nalised in a man­ner that … the best in­ter­ests of the chil­dren take prece­dence.”

Ndita’s rul­ing has left Van Hil­le­gonds­berg eu­phoric: “Since I walked out of the Cape Town high court, I have not looked at my watch again … both time and my life have col­lapsed into only now, this mo­ment”.

What is at is­sue, he says, is not years of stress and trauma. “It is not about us. It never was. It is what we rep­re­sent — the power, beauty and so­phis­ti­ca­tion of the Con­sti­tu­tion.”

Van Hil­le­gonds­berg will soon know whether his touch­ing faith is jus­ti­fied. Pan­dor’s prede- ces­sor, Nkosazana Dlamini-Zuma, gave the pro­tec­tor — and hence the Con­sti­tu­tion — the two-fin­ger sa­lute by sim­ply ig­nor­ing the find­ings.

This was part of a pat­tern. Home Af­fairs ear­lier failed re­peat­edly to co-op­er­ate with Madon­sela’s of­fice in pro­vid­ing the files that were re­quested.

Pan­dor is a known stick­ler for cor­rect­ness, but has al­ready once re­fused to grant the spe­cial min­is­te­rial ex­emp­tion re­quired. Van Hil­le­gonds­berg, how­ever, is op­ti­mistic: ‘We have never since our ar­rival not been safe. We have the moral pro­tec­tion of the Con­sti­tu­tion.

“That was con­firmed by Judge Ndita. Ba­si­cally, she said to me: ‘Stand here next to me, un­der the pro­tec­tion of the Con­sti­tu­tion, and we af­ford the min­is­ter the courtesy — with­out dam­ag­ing the dig­nity of her of­fice — to cor­rect her ear­lier er­ro­neous de­ci­sion’.

“Now it is up to Min­is­ter Pan­dor what will hap­pen. Back to the dark ages of ‘I win, you lose’ or for­ward to … ‘we win’.”

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.