IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
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In the matter between: |
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PRINCE MANGOSUTHU GATSHA BUTHELEZI, MP |
First Applicant |
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MOSIUOA LEKOTA, MP |
Second Applicant |
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and |
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MINISTER OF HOME AFFAIRS |
First Respondent |
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DIRECTOR-GENERAL OF THE DEPARTMENT OF HOME AFFAIRS |
Second Respondent |
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MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION |
Third Respondent |
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DIRECTOR-GENERAL OF THE DEPARTMENT OF INTERNATIONAL RELATIONS AND COOPERATION |
Fourth Respondent |
FOUNDING AFFIDAVIT
I, the undersigned
PRINCE MANGOSUTHU GATSHA BUTHELEZI, MP
do hereby make oath and say that:
I. INTRODUCTION
1. I am an adult South African Member of the National Assembly of Parliament. I am the First Applicant in this application. I am a former Minister of Home Affairs in the South African Government.
2. The contents of this affidavit are within my personal knowledge and are true, save where the context indicates otherwise. Where I make legal submissions, I do so on the advice of my legal representatives, which advice I verily believe to be correct. Where I quote from media sources, I do so not necessarily as evidence of the truth of their contents, but as evidence, inter alia, of the widespread attention that this matter has attracted both locally and internationally.
3. This application arises from the well-publicised and unlawful failure of the Respondents to lawfully process, consider and grant to His Holiness, Tenzin Gyatso, the 14th Dalai Lama (“the Dalai Lama”) an appropriate visa and/or permit to enter South Africa.
4. This failure, in addition to embarrassing South Africa on the international stage, has had two direct consequences.
5. First, the Dalai Lama is obviously now convinced that he will not ever receive a visa and/or permit to enter and visit South Africa. This is, after all, not the first occasion on which he has sought to enter South Africa for peaceful and/or personal reasons, and on each occasion the result of his application has been unjustifiably delayed, obstructed or ignored.
6. Secondly, those of us in South Africa who wish to meet and exchange ideas with the Dalai Lama – which number includes the Applicants – will not be able to do so. Our rights to receive or impart information or ideas in terms of section 16(1)(b) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), to freedom of association in terms of section 18 of the Constitution, and to freedom of religion in terms of section 15(1) of the Constitution, have been unjustifiably violated.
7. It is to prevent these violations and to ensure that the correct Respondents treat the Dalai Lama in accordance with the rule of law and the precepts of the Constitution that this application is brought.
8. The Applicants seek three forms of relief from the Court:
8.1. The review and setting aside of the Respondents’ failure to take a decision on the Dalai Lama’s application to enter and temporarily sojourn in South Africa;
8.2. A declaration to the effect that the treatment of the Dalai Lama’s application to enter and temporarily sojourn in South Africa by the Respondents was unconstitutional and unlawful; and
8.3. To rectify these injustices on a forward-looking basis, an interdict directing the Respondents to consider and determine any application by the Dalai Lama for an appropriate visa and/or permit in a procedurally fair and lawful manner and within thirty days.
9. In support of the above relief, this affidavit deals with:
9.1. The parties;
9.2. The history of the Dalai Lama and South Africa;
9.3. The law;
9.3.1. Failure to take a decision;
9.3.2. Lawfulness and procedural fairness;
9.3.3. The right to freedom of expression;
9.3.4. Openness and the Constitution;
9.3.5. International obligations;
9.4. Urgency; and
9.5. Conclusion and remedy.
II. The parties
10. I am an adult male citizen of South Africa. I am currently serving as a Member of the National Assembly of Parliament and am the President of the Inkatha Freedom Party (“IFP”). From May 1994 to May 2004, I was the Minister of Home Affairs. Furthermore, I have throughout my life been associated with worldwide spiritual activities. I am a lay minister and assist in administering Mass in my parish on some occasions. I have been a delegate or participated in many religious or ecumenical conferences or occasions, such as the Anglican Congress in Canada in 1963 and the 1999 Parliament of World Religions in Cape Town.
11. I was invited to the celebrations on 7 October 2011 in honour of Archbishop Emeritus Desmond Tutu, where I was planning on meeting and engaging with the Dalai Lama. These events would have occurred in Cape Town, within the jurisdiction of this Court.
12. The Second Applicant is Mosiuoa “Terror” Lekota, an adult male Member of Parliament and the President of the Congress of the People (“COPE”). The Second Applicant is also a former Minister of Cabinet, and he too, as a political leader, seeks to meet, engage and benefit from discussions with the Dalai Lama.
13. The Applicants have standing in terms of section 38 of the Constitution to bring this application:
13.1. In our own interest, in terms of section 38(a) of the Constitution, as our constitutional rights have and continue to be violated and/or threatened by the conduct of the Respondents; and
13.2. In the public interest, in terms of section 38(d) of the Constitution, as there has indisputably been nationwide interest – and, indeed, outrage – at our government’s treatment of a global icon and Nobel Peace Prize winner.
14. The First Respondent is the Minister of Home Affairs. She is the Minister as defined in section 1 of the Immigration Act 13 of 2002 (“the Act”), and is cited in her official capacity as the political head of the Department of Home Affairs (“the DHA”). As a Member of Parliament and of Cabinet, she has offices in Cape Town. She is cited care of the State Attorney, 22 Long Street, Cape Town 8000.
15. The Second Respondent is the Director-General of the Department of Home Affairs, cited in his official capacity. The First Respondent is responsible for the administration and implementation of the Act and the Immigration Regulations promulgated thereto (published in Government Notice R616 Government Gazette 27725 of 27 June 2005) (“the Regulations”), including the determination of visas and/or permits issued in foreign countries, for example to the Dalai Lama. The First Respondent is served at his offices at 56 Barrack Street, Cape Town, 8000.
16. The Third Respondent is the Minister of International Relations and Cooperation. She is the Cabinet member tasked with handling South Africa’s international conduct. She, too, is cited in her official capacity care of the State Attorney, 22 Long Street, Cape Town, 8000.
17. The Fourth Respondent is the Director-General of the Department of International Relations and Cooperation. He is the head of the bureaucracy of the Department of International Relations and Cooperation (“the DIRCO”), and is cited in his official capacity as such at his offices at 120 Plein Street, Parliamentary Precinct, Cape Town, 8000.
18. The Third and Fourth Respondents are cited as they are the officials who – as explained below – have publicly taken responsibility for the Dalai Lama’s application for a visa. The Applicants contest that the Third and Fourth Respondents are the correct government officials to take decisions on these issues.
III. THE HISTORY OF THE DALAI LAMA AND SOUTH AFRICA
19. The Dalai Lama is both a political and spiritual leader in the lineage of religious leaders of the Gelug school of Tibetan Buddhism, and in the line of political leaders of the Lhasa-based Tibetan government routed between the 17th century and 1959 when China occupied and annexed Tibet. The Dalai Lama is believed to be the current incarnation of a long line of Tulkus, or Buddhist Masters, who have become exempt from the wheel of death and rebirth.
20. I have met the Dalai Lama on a number of occasions, and have a great deal of respect for him and for the values he represents. For example, I was asked by his organisation to deliver a key note address to the 4th World Parliamentarian Convention on Tibet in November 2005 and to preside over one of its work sessions on human rights.
21. I must add that I, as a survivor of the struggle against the apartheid regime, have particular sympathy for the Dalai Lama. He, like many of us once were, is in exile from the land of his birth. He, like many of us once were, is regarded by the non-democratic government that controls his country as being a political dissident and even a terrorist. He, like many of us once did, calls upon the wider global community to place principle above profit, and not to turn a blind eye to human rights abuses simply because it is easier or cheaper to do so.
22. What is more, he is a firm and outspoken adherent of non-violent change, for which reason he was awarded the Nobel Peace Prize in 1989.
23. It is a sad day for South Africa when we turn our back on someone who is in the same invidious position that we once found ourselves in.
24. In the early days of South Africa’s democracy, the Dalai Lama was a welcome guest. He visited and was personally greeted by President Mandela and myself in 1996, in recognition of his invaluable contribution to the global struggle for human rights. I was the Minister in charge of ensuring that his visa was granted. I can affirm that – as befitting the Dalai Lama’s status – his visa for that occasion was granted promptly and without delay.
25. It appears that in recent years, however, the South African government, represented by the Respondents, no longer feels solidarity with human rights defenders. Indeed, it has treated the Dalai Lama with barely veiled hostility and disrespect.
26. In 2009, the Dalai Lama was invited by South African Peace Prize Laureates, Nelson Mandela, Archbishop Emeritus Desmond Tutu and FW de Klerk, to attend a Peace Conference that was to be hosted by the South African Premier Soccer League between 26 and 29 March 2009. He was furthermore scheduled to meet with me to discuss issues affecting Tibet, world politics and spirituality during the global depression, and to pray together for peaceful and serene elections in South Africa in 2009.
27. The Dalai Lama accordingly filed his application for a visa to South Africa in a timeous and lawful fashion.
28. The application was then, totally without justification, completely ignored, delayed and/or obstructed by the Respondents:
28.1. On 11 February 2009, letters were written to the South African High Commissioner in New Delhi to set up a meeting to seek a visa for the Dalai Lama;
28.2. The letters were ignored, apparently because the High Commissioner was “busy”;
28.3. Eventually, after an appointment with another official at the South African High Commission (“the Commission”) was arranged, the High Commissioner agreed to meet with the Dalai Lama’s representatives on 3 March 2009;
28.4. The High Commissioner, at the meeting and for no lawful cause, asked the Dalai Lama if he could postpone his visit;
28.5. When the Dalai Lama refused, as the dates for the Peace Conference had been set, the Commissioner said he would “get back” to the Dalai Lama;
28.6. The High Commissioner further returned the Dalai Lama’s application forms;
28.7. Despite frequent requests, no decision on the Dalai Lama’s visa application was ever received from the High Commissioner – the Dalai Lama was just told, again and again, that he would be informed once the South African Government came to a decision.
29. I attach as PMGB1 a letter from the Representative of the Dalai Lama, dated 1 April 2009, confirming the above facts.
30. In the end, the deadline for attending the Conference passed, and the Dalai Lama was forced to cancel his trip.
31. No coherent, official explanation was provided by the government for its delays.
32. It is a story that should sound very familiar to anyone who has been following local or even international headlines over the past few weeks.
33. Then, as now, the failure to provide a welcome to such a prominent messenger of peace and human rights provoked an outcry. I attach, simply as two examples among many of the public dismay at that time, a local Independent Online article titled “Outrage at Dalai Lama’s snub” as PMGB2 and an international CNN article titled “Dalai Lama denied visa for South Africa peace conference” as PMGB3. The General Council of the Bar, in the finest traditions of independent and forthright criticism, issued a media statement on 26 March 2009. I attach a copy of the media statement as PMGB4, and quote in part therefrom:
“The General Council of the Bar of South Africa (GCB) considers the
refusal to issue a visa to the Dalai Lama to be in violation of the
constitutionally protected rights to freedom of speech, freedom of
conscience, religion, thought, belief and opinion contained in both
sections 15 and 16 of our Bill of Rights where there is no
constitutionally justifiable basis for the refusal.
. . . .
It is unfortunate that we are found comparing the refusal now to
issue a visa to a Nobel laureate with the refusal to grant Albert
Luthuli a passport to receive his Nobel Peace prize.
The values upon which our democratic state is now built should not
waiver.”
34. The conduct of the government at that time was a travesty.
35. Even a Constitutional Court Judge of the time, Justice Kate O’Regan, stated extra-curially that:
“I also want to say that, like you, who remembers the years of the 1980s when South Africa was so fortunate to have friends all over the world assisting our human rights struggle, that it is a matter of dismay that human rights does not seem to enter into the picture of some foreign affairs decisions that are made.”
I attach in this regard a copy of the Mail & Guardian article titled “Judge Kate O'Regan wades into Dalai Lama debate” as PMGB5.
36. I myself, in response to what I believed and believe was unconstitutional conduct on the part of the South African government, launched an application in this Court under case number 6446/05 to contest the legality of the decision to effectively refuse a visa to the Dalai Lama. The application was struck from the roll for want of urgency, and no decision on the merits was ever made.
37. Nevertheless, at least in 2009 the government could hide behind the paper-thin claim that inviting the Dalai Lama would distract attention from the 2010 FIFA World Cup.
38. There is no such excuse for the government’s conduct these past few weeks.
39. The Dalai Lama was not even invited to South Africa on official business. He is no longer the head of the Tibetan government-in-exile. He was simply invited to celebrate the 80th birthday of his friend and one of South Africa’s own global icons, Archbishop Emeritus Desmond Tutu, on 7 October 2011. He was to deliver a speech to students entitled “Peace and compassion as a catalyst for change” – a very important topic in our own young democracy, and hardly an objectionable one.
40. He was also scheduled to attend events at MaAfrica Tikkun, Stellenbosch University and at the Mahatma Gandhi Institute.
41. The Dalai Lama’s visa application was accordingly submitted to the South African High Commission in New Delhi (“the Commission”) on 20 June 2011. I refer the Court to the confirmatory affidavit of Sonam Tenzing in this regard.
42. The Commission refused to accept it.
43. They refused to accept it again when it was re-submitted on 4 August 2011.
44. The Desmond Tutu Peace Centre (“the Centre”), which was hosting the Dalai Lama at the birthday celebrations for Archbishop Emeritus Tutu, was so concerned by this intransigence on the part of the Commission that on or around 26 September 2011, a formal attempt was made in Cape Town by the Centre to file an application for a visa for the Dalai Lama.
45. This application, too, was refused.
46. The basis for the refusal was that the Dalai Lama had not applied for a visa in New Delhi.
47. This reason can only – in light of the true facts as set out above and in Sonam Tenzing’s affidavit – be considered as an obfuscation of the truth and a deliberate attempt to impede and delay the lawful processing of the Dalai Lama’s application. By itself, it constitutes unlawful conduct.
48. Eventually, on 29 August 2011, the Commission accepted the Dalai Lama’s application for a visa.
49. However, even though it had been accepted and despite frequent inquiries from various interested parties, the Commission failed to take any action on the Dalai Lama’s application.
50. On 7 September 2011, the Centre were so concerned by the delays caused by the Commission that the Chairperson of the Desmond Tutu Peace Trust, Advocate Dumisa Ntsebeza SC wrote to the Deputy Minister of International Relations and Cooperation, Mr Ebrahim Ebrahim. I attach as PMGB6 a copy of this letter, which refers to the above facts, and I quote in part therefrom:
“[I]t has reached the point that uncertainty over the visa is not only causing deep anxiety to the Archbishop and Dalai Lama, but is materially jeopardising the Desmond Tutu Peace Trust’s ability to organise the inaugural Desmond Tutu International Peace Lecture. I believe other non-governmental organisations due to host the Dalai Lama in South Africa, including the Ghandi Trust, are experiencing similar difficulties.
The Dalai Lama’s visit is now a month away. It is critical that the matters of his visa and personal security in South Africa are urgently resolved.
Please could I request you to facilitate an urgent response from the Department on the visa, and please could I further request guidance from you on what responsibility, if any, the South African government will assume for securing the delegation while it is in South Africa.”
(Emphasis added.)
51. On 8 September 2011, due to more delays and apparent confusion at the Commission, the Dalai Lama’s application was re-submitted.
52. However, a week later and despite promises of swift action, there was still no decision forthcoming.
53. On 15 September 2011, Adv Ntsebeza SC was driven to send another letter, attached as PMGB7, to try and obtain some clarity from the government. I quote in part therefrom:
“We have received word that His Holiness has been travelling and returns to his home in India, through New Delhi, on 20 September 2011. It would make logistical sense for His Holiness’ passport to be presented to the South African High Commission in New Delhi on this date.
Please could we therefore request that a decision on the visa is communicated to us prior to 20 September 2011?
Your assurance on this matter, together with a response to our question regarding State assistance to secure the delegation, will go some way to addressing the growing anxieties of those who will be hosting His Holiness in South Africa – which includes cash-strapped NGOs such as the Desmond Tutu Peace Centre that are already expending resources on the organisation of events.”
(Emphasis added.)
54. Whatever the official response to this letter, in substance nothing changed. By 20 September 2011, no decision on the application was reached.
55. On 20 September 2011, the Dalai Lama’s original passport was submitted to the Commission. It had not been possible to submit it beforehand, as the Dalai Lama had been travelling. The Dalai Lama’s staff were also asked – for the first time – to pay a processing fee, which was duly paid on the same date.
56. At this stage, it seemed as though there could not possibly be any more obstacles to the granting of the application. Every possible item had been provided, every box checked.
57. But still, whenever the Dalai Lama’s staff inquired after the application, they were told that the Commission were awaiting authorisation from South Africa.
58. The only possible persons from whom they could have been awaiting instructions were the Respondents.
59. On 26 September 2011, Adv Ntsebeza sent yet another letter to Deputy Minister Ebrahim in order to express the increasing desperation and frustration with the foot-dragging of government officials. I attach a copy of the letter as PMGB8. It states in relevant part:
“As you are aware, Archbishop Tutu has invited His Holiness to attend his 80th birthday celebrations from the 6th to the 8th of October 2011. The lack of a decision on whether or not our Government will allow His Holiness into the country is proving a major stumbling block for the organisers of the celebrations, including the inaugural Desmond Tutu International Peace Lecture.
This is now our fourth formal attempt at soliciting government support and approval for His Holiness’ visa, having previously directed two letters to you and a third letter to Minister of Home Affairs, the Honourable Nkosazana Dlamini-Zuma. The Department of Home Affairs responded on the Minister’s behalf today that they do not have jurisdiction over the matter and referred us back to you.
. . . .
I am mandated by my board to request your urgent assistance on this matter as time is of the utmost essence.”
(Emphasis added.)
60. Time has shown that the Respondents ignored this letter, as they have ignored the previous letters.
61. At the same time as the Centre was engaging with the Respondents privately, there was an ever-increasing – and apparently well-founded – concern among the public and civil society was that, yet again, our government would turn its back on someone that it should hold in highest esteem.
62. For example, the Mail & Guardian, in an article titled “Government mum on Dalai Lama visa” (attached as PMGB9), referred to the 2009 debacle and, inter alia, the comment of then-Minister for Public Enterprises Barbara Hogan that—
“the very fact that this government has refused entry to the Dalai Lama is an example of a government who is dismissive of human rights”.
63. The same article noted that civil society campaigners were to hold a candlelight vigil outside Parliament in support of the Dalai Lama. The vigil was organised under the motto “Let Him In Now! No Pass Laws For The Dalai Lama!”
64. The international community took notice of our government’s disrespect to the revered Nobel Peace Prize winner. An article from Al-Jazeera, titled “Dalai Lama made to wait for S Africa visa” (attached as PMGB10) noted that the Commission in India usually issues tourist visas within seven days.
65. As I mentioned previously, in my experience as Minister of Home Affairs, a visa application from somebody as eminent as the Dalai Lama should – ordinarily and constitutionally – be prioritised for processing.
66. In a rare interview (attached as PMGB11) on 30 September 2011, Archbishop Tutu said presciently that:
“I think my birthday gift is going to be: no Dalai Lama . . . It’s unlikely that they’ll give him a visa. If they were going to, they would have done so already. I think they’re going to hold on so there’s little time for people to get nasty against the government. It’s sad.”
67. These sentiments were echoed in other publications. Internationally, the New York Times published an article (attached as PMGB12), titled “Tutu and Dalai Lama criticise South Africa Over Visa Delay”.
68. The international NGO Human Rights Watch also issued a statement calling on South Africa to issue a visa to the Dalai Lama. A copy of that statement is attached as PMGB13. In it, the Africa Director for Human Rights Watch states, inter alia, that—
“there are few better ways to honor Archbishop Tutu, and that for which he and South Africa stand, than by acting on principle rather than on perceived political expediency”.
69. I mention these various publications, civil society gatherings and pieces of correspondence to drive home two points.
70. First, everyone across the world is aware of how cruelly ironic it would be for a democratic South African government – which only came into existence partly as a result of determined international pressure against apartheid – to effectively prevent the Dalai Lama’s entry into South Africa. Where is our integrity if we loudly proclaim that all nations should have an ethical foreign policy when it suits us, but then abandon our ethics and our claims as soon as it is to our personal advantage?
71. Secondly, it is beyond dispute that the South African government, represented by the Respondents, knew of the global interest in the outcome of their decision. They knew of the impending deadline of 7 October 2011 as Archbishop Tutu’s birthday. They knew that the Dalai Lama’s staff were standing by, night and day, ready to provide any documentation or to assist them in solving any procedural difficulty that arose. Ultimately, they knew that if they did not give the Dalai Lama his visa within a reasonable time, he would not be able to attend.
72. In other words, if the Respondents had no objection to him entering and sojourning in South Africa, they would have made it happen.
73. They did not do so. Their conduct is described by Sonam Tenzing in his confirmatory affidavit.
74. The visa application sat with them for weeks without any action thereon. Despite frequent inquiries from the Dalai Lama’s representatives, the Respondents appeared unable or more likely unwilling to come to a decision.
75. Given all the effort and pressure that was placed on the Respondents with regard to this visa application, I respectfully submitted that this is a clear and blatant case of a public officer unreasonably failing to take a decision.
76. On 4 October 2011, the Dalai Lama announced that “since the South African government seems to find it inconvenient to issue a visa to His Holiness the Dalai Lama, His Holiness has decided to call off this visit to South Africa”. A copy of the official press release stating the above is attached as PMGB14.
77. This regrettable, inevitable decision of the Dalai Lama rightly created a furore.
78. “South African diplomacy reeling from Dalai Lama debacle” was another headline in The New Age (PMGB15).
79. “South Africa, hang your head in shame” read the headlines of The Daily Maverick (PMGB16).
80. “SA’s stance on Dalai Lama visit is ridiculous” proclaimed The Sowetan (PMGB17).
81. Archbishop Tutu, quite correctly, called the conduct of the Respondents disgraceful and discourteous towards the Dalai Lama.
82. The Congress of South African Trade Unions (“COSATU”) issued a press release in which they stated, inter alia, that:
“COSATU condemns in government’s clumsiness in handling the Dalai Lama’s visa application. We also condemn the forked tongue communication and lack of openness throughout the entire saga. The unnecessary delays and the failure by government to provide clear and succinct reasons for the delays in processing the visa application have only served the purpose of fuelling suspicions of foul play.
. . . .
As a matter of principle, the federation strongly opposes the utilisation of bureaucratic red tape as a means to frustrate those who don’t share similar perspectives with the government.”
A copy of this press release is attached as PMGB18.
83. The Vice-Chancellor of the University of the Witwatersrand, Loyiso Nongxa, also made a public statement, attached as PMGB19, in which he, inter alia, highlights the ignominious parallels between the Respondents’ conduct and the conduct of other countries that South Africa has criticised:
“Bekuyizolo oku, it is not that long ago that Emeritus Archbishop Tutu was refused entry into Israel, and we were outraged. It is not that long ago that Renfrew Christie or Tokyo Sexwale were refused entry into US, and the reason was that they were convicted by the Apartheid Regime under Terrorism Act. This applies to our Chairperson of Council Saki Macozoma, it applies to the Chancellor of our University, Dikgang Moseneke who was convicted at the age of 15 and was incarcerated at Robben island for 10 years. It is not that long ago, during the era of War on Terror, that you and I and most of us felt violated that we were stopped and searched and asked many questions and we sometimes felt that we were singled out because we looked differently, of a darker hue. It is not that long ago that the Apartheid Regime refused passports to those it deemed no longer South African citizens under its discredited Bantustan Policy. It is not that long ago that under the abominable Pass Laws, those of us who were deemed rural were not allowed to move to urban areas (without permission) or if you were urban you were restricted to Soweto or Gugulethu. It is not that long ago that the Apartheid Regime routinely refused entry to scholars and academics and their sin was that they haboured by their definition, ‘dangerous idea’ like being a Communist. It is not that long ago that people of African ancestry from the rest of the African continent were not issued with visas unless they came to our shores as cheap labour. It is not that long ago that John Vorster, in his offices at the Union Buildings, maybe the same office as that occupied by our President, was denied entry to a cricket team from the UK because it had one Basil D’Oliviera, once classified as Coloured, but emigrated and went to pursue his trade in England. He almost torpedoed a visit by the All Blacks in 1970 because a team member, Bryan Williams was of Samoan origin. I am disappointed and outraged that there are these parallels between my government and the actions of the previous regime.”
84. Internationally, South Africa was in the news for all the wrong reasons.
85. Foreign Policy called South Africa a “Cowardly Lion” and asked “What’s happened to Nelson Mandela’s Rainbow Nation?” (PMGB20).
86. The New York Times ran an article on the effective rejection of the Dalai Lama (PMGB21) in which it – as did many – raised the suspicion that the Respondents’ conduct was—
“a capitulation to China, one of South Africa’s most important economic partners and a strong opponent of the Dalai Lama, whom the Chinese authorities consider subversive.”
87. Similar comments featured in The Guardian (PMGB22). It quoted Ela Gandhi, the grand-daughter of Mahatma Gandhi, who had planned to present the Dalai Lama with a peace prize:
“Everyone thinks this is because of pressure from China. It’s very sad that another country is allowed to dictate terms to our government. It’s going back to apartheid times. I am ashamed of my own country”.
88. On 6 October 2011 – still prior to Archbishop Tutu’s birthday – the Citizen quoted comments from the Dalai Lama’s spokesperson (“PMGB23”), who explained that logistics had forced their hand:
“Just getting to an airport will take a whole day . . . We don’t even have tickets. It is out of the question.”
89. It is this practical reality – of which the Respondents must have been aware – that belies the South African government’s public statements that it has no opposition to the Dalai Lama’s entry. On 5 October 2011, Deputy President Kgalema Motlanthe was quoted by the Star as saying that South Africa was definitely willing to grant the Dalai Lama a visa (PMGB24).
90. It is easy to say such things when there is no prospect that the Dalai Lama could actually come to South Africa.
91. As matters stand, it is highly unlikely that the Dalai Lama will ever return to South Africa:
91.1. He is an international icon, and if he is not welcome here, there are literally millions of people in other countries who are eager to welcome him;
91.2. His schedule, one may safely assume, is booked far in advance, which means that if he is denied access to South Africa by reason of a “late” visa, he cannot just wait a week until it comes through;
91.3. He has already been humiliated twice in attempts to come to South Africa – he can hardly be eager to try his luck a third time without some reassurance that he will be treated in a respectful and constitutional manner; and
91.4. Even if he did try to come to South Africa, the facts as outlined above strongly suggest that the Respondents will, yet again, effectively block his entry.
92. However, the Second Applicant and I remain of the intention to have the Dalai Lama visit this country unimpeded by the Respondents’ unconstitutional conduct to date.
93. On 13 October 2011, I sent an invitation to the Dalai Lama inviting him to come to South Africa for a prayer and meditation meeting on 21 March 2012, which is the equinox. I attach a copy of this letter as PMGB25. I quote it in full:
“Your Holiness
Twice I have planned and hoped to meet with you to pray together, receive your spiritual guidance and discuss the state of the world and its politics. I was counting on us meeting when you planned to come to South Africa for the Peace Conference in April 2009, and again on the occasion of your planned trip to participate in Archbishop Tutu’s 80th birthday in October 2011.
On both occasions your plans were thwarted by the failure of the South African Government to issue to you, within a reasonable time, the required entry visa. I believe that such failure is unconstitutional. I am ashamed that, because of the actions of my government, you may never return to South Africa and we may never benefit from engaging with and learning from you. I say this with regret, as an elderly statesman now approaching his 83nd birthday.
In 2009, when you were first effectively denied a visa to South Africa, I applied to our High Court to review the legality of that decision. I intend to do so again in respect of the recent constructive refusal of the South African Government to issue you a visa.
Therefore, in anticipation of the matter being favourably adjudicated by our courts and any wrongful obstacle to your travelling to South Africa being thereby removed, I have the great pleasure to invite you to partake in a prayer and meditation meeting in Durban on March 21, 2012.”
94. I hope that the Dalai Lama will accept this invitation. It is now evident to all the world, however, that the Respondents will not, as matters stand, allow the Dalai Lama to enter South Africa. They may not say so, but facts above – including the events of 2009 – are irrefutable.
95. The Applicants submit that the effective refusal of the Respondents to grant the Dalai Lama an appropriate visa and/or permit is irrational, unreasonable, unconstitutional and unlawful.
96. It is to overcome this refusal, and to compel the Respondents to abide by the spirit and the letter of the Constitution, that this application is brought.
IV. The law
97. I reiterate that the Applicants seek three forms of relief from the Court:
97.1. The review and setting aside of the Respondents’ failure to take a decision on the Dalai Lama’s application to enter and temporarily sojourn in South Africa;
97.2. A declaration to the effect that the treatment of the Dalai Lama’s application to enter South Africa by the Respondents was unconstitutional and unlawful; and
97.3. To rectify these injustices on a forward-looking basis, an interdict directing the Respondents to consider and determine any application by the Dalai Lama for an appropriate visa and/or permit in a procedurally fair and lawful manner and within thirty days.
98. I wish to set out briefly the legal basis for the Applicant’s claim that the Respondents have acted unconstitutionally and unlawfully. There are five inter-related bases:
98.1. First, the Respondents’ unreasonable failure to take a decision on the Dalai Lama’s application renders their conduct reviewable in terms of section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2002 (“PAJA”);
98.2. Secondly, the Respondents acted unlawfully and in violation of procedural fairness by allowing the Dalai Lama’s application to be determined – in substance if not in form – by an official or officials in the DIRCO who have no powers under the Act to make any determination on the granting of a visa or permit;
98.3. Thirdly, the Respondents violated the constitutional rights, including the right to receive and impart information and ideas in terms of section 16(1)(b) of the Constitution, of the Applicants, as well as many other people in South Africa;
98.4. Fourthly, the Respondents, in obstructive and negligent fashion in which they considered and processed the Dalai Lama’s application, acted in a manner inconsistent with the founding values of the Constitution and with section 195 of the Constitution, and accordingly acted unlawfully; and
98.5. Fifthly, the Respondents have, through their conduct, violated not only South African law but have also breached South Africa’s international and regional legal obligations.
99. I submit that any one of these grounds would be by itself sufficient cause for this Court to grant the relief contained in the notice of motion to which this affidavit is attached.
Failure to take a decision
100.Section 33 of the Constitution provides in relevant part:
“(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.
101. The mechanism through which the right to administrative action is protected is judicial review. However, this right has been given statutory form in PAJA. Proceedings for judicial review must therefore be launched in terms of PAJA, and not by relying directly upon the Constitution.
102.Section 6 of PAJA provides in relevant part:
“(2) A court or tribunal has the power to judicially review an administrative action if—
. . . .
(g) The action concerned consists of a failure to take a decision;
. . . .
(3) If any person relies upon the ground of review referred to in section 2(g), he or she may in respect of a failure to take a decision, where—
(a) (i) an adjudicator has a duty to take a decision;
(ii) there is no law that prescribes a period within which the administrator is required to take that decision; and
(iii) the administrator has failed to take that decision;
institute proceedings in a court or tribunal for judicial review of the failure to take the decision on the ground that there has been unreasonable delay in taking the decision”.
(Emphasis added.)
103. It is submitted that it is beyond dispute that the Respondents unreasonably delayed taking a decision on the Dalai Lama’s application for a visa. His representatives attempted to file the application months in advance of his visit. They were refused. When, eventually, the application was accepted, it remained sitting with the Commission – the employees of the Respondents – with no action or decision being taken thereon.
104. Why was there no decision? Because the Commission were awaiting instructions from the Respondents that never came.
105. The Respondents did not even have the courage to openly refuse the visa and place their reasons on public record. Instead, they just let the time run out, until the Dalai Lama was physically unable to travel to South Africa in time.
106. The Applicants submit that such conduct is manifestly unlawful and cries out for a remedy from this Court.
Lawfulness and procedural fairness
107. The Applicants submit that the consideration, processing and/or failure to take a decision on the Dalai Lama’s visa application was materially tainted by illegality, inasmuch as the key decisions were taken by officials in the DIRCO who have no power in law to affect immigration matters.
108. The fact that it was the DIRCO, and not the First and/or Second Respondents, who took the decisions on the Dalai Lama’s application is confirmed by multiple media reports in which the DHA referred queries on the Dalai Lama to the DIRCO.
109. According to the South African Broadcasting Corporation (“SABC”) – see the article attached as PMGB26 – the First Respondent was asked a direct question in Parliament about the Dalai Lama. Her response, inter alia, was that:
“[I]t was not Home Affairs. If it was Home affairs we would have dealt with it and we would have spoken on it one way or the other, it wasn't our issue. So I think we should accept that don't drag us [in].”
110. A similar article in Business Day (PMGB27) quotes a Home Affairs spokesperson as stating that the Dalai Lama’s visa application was a foreign affairs issue.
111. This is unlawful.
112. The Act and the Regulations, which control all material aspects of the process of applying for a visa or application, vest all decision-making powers in the DHA. Section 10A(3)(a) of the Act specifically grants the First Respondent the power to grant a person a visa.
113. There is no authority in law for the DHA to abdicate its responsibilities to the DIRCO.
114. Accordingly, what has occurred in the Dalai Lama case is unlawful and unconstitutional for that reason alone.
115. It is a well-established principle of South African law that public powers may only be exercised by those who are authorised in law to wield them. This is an aspect of the principle of legality, which is itself a component of the rule of law.
116. The importance of this principle has been upheld many times. For example, in Pharmaceutical Manufacturers Association of SA and Another: in re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at paragraphs 19 and 20, the Constitutional Court stated:
Section 2 of the Constitution lays the foundation for the control of public power. It provides:
‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.'
Consistent with this, s 44(4) of the Constitution provides that, in the exercise of its legislative authority, Parliament 'must act in accordance with, and within the limits of, the Constitution'. The same applies to members of the Cabinet, who are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. They, too, are required to act in accordance with the Constitution.
The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.”
(Footnotes omitted.)
117. And in Fedsure Life Assurance LTD and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at paragraph 58, the Constitutional Court further held:
“It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.”
118. The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) explicitly recognises in section 6(2)(a)(i) that if an administrator takes a decision who is not authorised to do so by the empowering provision, that decision is subject to being set aside.
119. It is on the above basis that the Applicants contend that the Court should grant the relief sought in the notice of motion.
The right to freedom of expression
120. The Applicants submit that in effectively refusing to allow the Dalai Lama to enter South Africa, the Respondents have denied many South Africans the right to meet, talk, associate, engage and learn from this celebrated human rights campaigner and spiritual leader.
121. Section 16(1)(b) of the Constitution provides:
“Everyone has the right to freedom of expression, which includes:
(a) . . .
(b) Freedom to receive or impart information or ideas”.
122. Section 15(1) of the Constitution provides:
“Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”
123. Section 18 of the Constitution provides:
“Everyone has the right to freedom of association.”
124. All of these rights of the Applicants have been violated by the conduct of the Respondents.
125. I must stress that, for the Applicants, meeting with the Dalai Lama and other political and religious leaders is not simply a luxury – it is part of our job, our function as leaders in our own rights. To be a leader means engaging with other leaders, talking, discussing, and debating ideas, proposals and problems. These are the acts through which every political and religious leader achieves anything.
126. By corollary, and as has been recognised even in international law, by restricting freedom of speech, association and religion, one can effectively control and prevent political and religious action. This is a reality that the Dalai Lama knows all too well.
127. The importance of the right to receive information in the South African constitutional order, and the consequent severity of the Respondents’ misconduct, has been emphasised by the Constitutional Court. In Case and Another v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC) at paragraphs 25 – 27, the Court held:
“[M]y freedom of expression is impoverished indeed if it does not embrace also my right to receive, hold and consume expressions transmitted by others. Firstly, my right to express myself is severely impaired if others’ rights to hear my speech are not protected. And secondly, my own right to freedom of expression includes as a necessary corollary the right to be exposed to inputs from others that will inform, condition and ultimately shape my own expression. Thus, a law which deprives willing persons of the right to be exposed to the expression of others gravely offends constitutionally protected freedoms both of the speaker and of the would-be recipients.
. . . .
We must understand the right . . . not in isolation, but as part of a web of mutually supporting rights enumerated in the Constitution, including the right to “freedom of conscience, religion, thought, belief and opinion”, the right to privacy, and the right to dignity. Ultimately, all of these rights together may be conceived as underpinning an entitlement to participate in an ongoing process of communicative interaction that is of both instrumental and intrinsic value.”
(Footnotes removed). (Emphasis added).
128. The above ruling was confirmed and expanded upon in South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) at paragraphs 7 – 8, where O’Regan J stated:
“Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.
. . . .
[Freedom of expression] is closely related to freedom of religion, belief and opinion (section 15), the right to dignity (section 10), as well as the right to freedom of association (section 18), the right to vote and to stand for public office (section 19) and the right to assembly (section 17). These rights taken together protect the rights of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions.”
(Footnotes removed). (Emphasis added).
129. The above dicta apply a fortiori when the information or ideas being received are important, rare, or pertinent to an individual or group.
130. The information that would be received from the Dalai Lama fulfils all of these categories. He is a world leader whose acclaim comes from his wisdom and his commitment to peace. He is unlikely – even if the Respondents had not acted as they did – to return to South Africa, as he is old and very busy. Finally, his message of peace and compassion as a catalyst for change is extremely pertinent to our young society, which remains radically untransformed and sadly ravaged by crime.
131. For this reason the Applicants submit that the Court should grant the relief sought in the notice of motion.
Openness and the Constitution
132. Section 1 of the Constitution sets out its founding values. These include, at section 1(d):
“[A]ccountability, responsiveness and openness”.
133.Section 195 of the Constitution provides:
“(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
(b) Efficient, economic and effective use of resources must be promoted.
(c) . . .
(d) Services must be provided impartially, fairly, equitably and without bias;
(e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making;
(f) Public administration must be accountable.”
(Emphasis added.)
134.Section 237 of the Constitution provides:
“All constitutional obligations must be performed diligently and without delay.”
135. The sum of these provisions, among others, is to confirm what the Constitutional Court has called “a culture of openness and democracy” in Shabalala and Others v Attorney-General, Transvaal and Another 1996 (1) SA 725 (CC) at paragraph 26:
“What is perfectly clear from these provisions of the Constitution and the tenor and spirit of the Constitution viewed historically and theologically, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is 'justifiable in an open and democratic society based on freedom and equality'. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.”
(Footnotes omitted.) (Emphasis added.)
136. It is within this culture and context that the Respondents’ conduct must be evaluated. The Applicants submit that the Respondents have acted in a manner which is secretive, obstructive and prejudicial to the rights of the Applicants and the Dalai Lama. They have left us, and all of South Africa, in the dark as to what actually happened to the Dalai Lama’s visa application.
137. It is submitted that such actions are clearly inconsistent with the values and provisions of the Constitution outlined above, and must therefore be declared to be unconstitutional.
International obligations
138. The Respondents’ effective refusal to allow the Dalai Lama to enter South should be considered through a further lens – namely, South Africa’s international law obligations.
139. South Africa is a party to the African Charter on Human and Peoples’ Rights (“the African Charter”) and the International Covenant on Civil and Political Rights (“the ICCPR”). This Court is duty bound to consider their provisions in interpreting the rights in the Bill of Rights upon which the Applicants rely.
140. What is more, this Court is entitled to scrutinise the Respondents’ conduct in this matter against the standards set out in the international conventions to which South Africa is a party. That is so because, in accordance with the principle of pacta sunt servanda, South Africa is bound to comply in good faith with its obligations under the Conventions to which it has agreed.
141. South Africa ratified the African Charter on 9 July 1996 and the ICCPR on 10 March 1999.
142. A treaty that has been signed and ratified is binding on South Africa on the international plane. This is irrespective of whether or not the treaty has been enacted or incorporated into local law. A failure to observe the provisions of such a treaty may result in South Africa incurring responsibility towards other signatory states.
143. In terms of South Africa’s obligations under the African Charter, the following articles are of relevance.
144. Article 8 provides:
“Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”
(Emphasis added)
145. Article 9 provides:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.”
(Emphasis added)
146. Article 10(1) provides:
“Every individual shall have the right to free association provided that he abides by the law.”
(Emphasis added)
147. Article 11 provides:
“Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”
(Emphasis added)
148. All of these provisions reinforce the legal submissions made above, and underline the severity of the Respondents’ misconduct infringing basic human rights that are protected at the highest level.
149. In terms of South Africa’s obligations under the ICCPR, the following articles are of relevance.
150. Article 18 provides:
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
(Emphasis added)
151. Article 19 provides:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
(Emphasis added)
152. The fundamental principles of international law relevant to this matter are articulated in emphatic terms in the above instruments, to which South Africa is a party. Clearly a constructive prohibition on the Dalai Lama’s entrance into South Africa constitutes a considerable constraint on those rights, both as enjoyed by the Dalai Lama, the Applicants and the rest of the world (both inside and outside South Africa).
153. The international instruments make clear that only in circumscribed circumstances would an exercise of public power which has the effect to restrict the rights referred to above, be permissible. There is no conceivable basis to justify the infringement occasioned by the Respondents’ failure to provide a visa for the Dalai Lama. That is not least of all because the restriction of these rights is not by operation of any law – but indeed by operation of what would seems to be a policy decision taken by the Respondents that has no mooring in any legislation or the Constitution.
154. Therefore the decision regarding the visa application constitutes an infringement of international law. There appears to be no plausible justification which would satisfy the limitation provisions under either the African Charter or the ICCPR.
155. I now turn to the next issue: the question of urgency.
V. Urgency
156. The Applicants submit that this application is of an urgent nature, and that if this matter were heard in the ordinary course the Applicants would be unable to receive substantial redress.
157. There are three reasons why this application satisfies Rule 6(12) of the Uniform Rules of Court.
158. First, the Applicants have invited the Dalai Lama to visit South Africa on 21 March 2012 for a prayer and meditation meeting.
159. Given the humiliation that he has suffered at the hands of the Respondents, there is no reasonable prospect that he will agree to ever apply for a visa and/or permit unless he has some clear indication that this time, things will be different.
160. The grant of the interdict sought by the Applicants constitutes that indication. Perhaps more importantly, it ensures that any application made by the Dalai Lama cannot be ignored or delayed by the Respondents in the way that they have ignored or delayed his previous applications.
161. However, in order to be effective, the interdict sought by the Applicants must be granted on an urgent basis. An order granted in the ordinary course would arrive far too late to have any practical impact on the process of granting the Dalai Lama a visa.
162. I would add that the planned meeting between the Applicants and the Dalai Lama must happen in the near future, for the simple reason that both the Dalai Lama and I are in the last years of our lives. I am approaching my 83rd birthday. The Dalai Lama is 76 years of age. There is a real and serious possibility that, if the two of us do not meet within the next half a year or so, we will not meet at all.
163. I have already been waiting for years to meet the Dalai Lama. I had hoped to meet him in 2009. I had hoped to meet him this October 2011. On both occasions my hopes have been dashed. This is, for both of us, likely to be our last chance.
164. The Applicants further contend that our planned prayer and meditation meeting, which is a direct exercise of our rights to association, expression, and religion, on principle should not be subordinated to the bureaucratic requirements of the Respondents. As stated above, I know from my own experience as Minister of Home Affairs that it is perfectly possible and relatively simple to grant a visiting VIP a visa on short notice. The Respondents, accordingly, will suffer no prejudice by the granting the order sought on an urgent basis.
165. Secondly, this matter is one which concerns constitutional rights and fundamental principles of the rule of law, as set out above. The Applicants’ rights to receive and impart information and ideas, to freely associate, and to express their religion, are more than just ideals. What the Court needs to ask itself is, do we live in a society where our government can, by effectively blocking certain “undesirable” people from South Africa, control who we speak to and what we listen to? If the answer is no – and it must be no – then the protection of these rights requires prompt and clear action from the Court.
166. It is submitted that this basis for urgency is on all fours with that upheld by the Constitutional Court in Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another intervening) 2001 (3) SA 893 (CC) (“Mohamed”).
167. In Mohamed, the applicant was arrested and handed over to the United States authorities in breach of the law, to face a possible death sentence. The case was heard after the applicant had passed outside of South Africa, and hence after the Court’s ruling could have any direct practical effect.
168. However, given the manifest illegality of what had been done to the applicant, the Constitutional Court agreed to hear the matter as one of urgency.
169. Similar considerations apply in this case. Here, too, notwithstanding that the Dalai Lama’s visit has been scuppered by the Government’s unconstitutional conduct, the matter nevertheless warrants the attention of the courts, as the interests of justice demand that the unconstitutional conduct of the Respondents be censured. And in any event it is necessary, given the invitation for the Dalai Lama to visit in March 2012, for the matter to be heard and decided urgently in time for the Dalai Lama to apply for a new visa for such a visit.
170. Thirdly, and perhaps most obviously, this matter is one of great public interest. The outcry when the Dalai Lama was forced to withdraw his application shows the attention this matter has garnered. Yet, despite all this attention, the actions of the Respondents – who purport to represent our democratically elected government – remain shrouded in shadow. Why was there such delay in the Dalai Lama’s case? Why could his application, which was of such prominence and which was needed to save South Africa international embarrassment, not be expedited? Have the Respondents capitulated to Chinese pressure, as speculated in the media? And if so, was this constitutionally permissible?
171. These are important questions that South Africa deserves to know the answer to, not in a year or two years, but soon enough that future efforts to invite the Dalai Lama into South Africa – like the efforts of the Applicants – will not be undermined by similar underhanded political expediency.
172. The Applicants therefore submit that this matter is clearly urgent.
173. The Applicants pray for an order as contained in the notice of motion to which this affidavit is attached, including an order granting the Applicants the costs of two counsel.
174. Such an order, first, would be to review and set aside the Respondents’ failure to take a decision to grant the Dalai Lama a visa in terms of section 7 of this Court’s powers under PAJA, read with section 172(1)(a) of the Constitution.
175. Second, declaratory relief is sought. This relief is of a constitutional nature. Ngcobo J (as he then was) set out the powers and obligations of courts dealing with constitutional matters in Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at paragraphs 210-212, as follows:
“The powers of this court when deciding a constitutional matter are set out in s 172(1) of the Constitution which provides:
‘When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.’
Pursuant to s 172(1)(a) it follows therefore that an order must be made declaring the conduct of the President inconsistent with the Constitution and thus invalid.
In terms of s 172(1)(b) of the Constitution, this court may 'make any order that is just and equitable' as part of the relief. The requirement of 'just and equitable' means that the remedy must be fair and just in the circumstances of the particular case.”
(Emphasis added.)
176. It is therefore submitted that, once this Court is satisfied that the Respondents have acted in an unconstitutional and unlawful manner, it has no discretion but must make a declaration to that effect in terms of section 172(1)(a) of the Constitution.
177. Having made such a declaration, the Court may then, it is submitted, go on to grant just and equitable relief in terms of section 172(1)(b) of the Constitution. It is submitted that the interdict sought by the Applicants constitutes such just and equitable relief.
________________________________________
PRINCE MANGOSUTHU GATSHA BUTHELEZI, MP
I certify that:
The Deponent signed this affidavit and swore and acknowledged that s/he:
a) Knew and understood the contents thereof;
b) Had no objection to taking the oath; and
c) Considered the oath to be binding on his/her conscience.
The Deponent then uttered the words ”I swear that the contents of this declaration are true, so help me God”.
DATED AT THIS DAY OF OCTOBER 2011.
____________________________
COMMISSIONER OF OATHS
