An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I am in a bit of a fix: I often complain bitterly about the tendency of officials and politicians to ignore the clear provisions of the Constitution or relevant legislation to achieve politically expedient goals. On this Blog I have ranted about the unlawful release of Schabir Shaik, the probably unlawful firing of Vusi Pikoli, the failure of the JSC properly to investigate complaints against Judge President Hlophe, the probably unlawful dropping of charges against President Jacob Zuma and any number of other matters where the Rule of Law was not adhered to.
Does this mean I should applaud sports Minister Makhenkesi Stofile’s decision not to assist with the granting of citizenship to one of my heroes, Tendai “Beast” Mtawarira? Mtawarira was born in Zimbabwe and although he has already played 15 test matches for the Springbok Rugby team it now transpires that those bright sparks at Springbok Rugby have never made sure that Mtawarira becomes a South African citizen. Only South African citizens can play for the national team so now we will have to take on France on Friday night without “The Beast” in the front row. It’s a disaster.
On its face, the Minister is acting in an admirable fashion, sticking to the rules and upholding the Rule of Law. The Sports Ministry explained the decision last night in the following terms:
This request to have the Minister use his position to have the process of securing permanent residence and subsequently, citizenship expedited ahead of the year end tour in Europe, has exposed our sport administrators’ clear disrespect or lack of understanding of our laws.
Talented as he is, Tendai, like all foreign nationals plying their trade in South Africa, is bound by the laws of this country. The migration laws of our country are clear on issues relating to permanent residence and citizenship. We expect our sport administrators to understand and respect legislation that regulate their business. None of the athletes, sport codes, or federations can be bigger than the country.
While Tendai is a live wire on the field of play, the question is whether it is, in the first place, justifiable to say he has scarce skills – the rationale that would have enabled him to obtain the current work permit. If we go the route our rugby administrators are requesting us to take, and facilitate the fast-tracking of Tendai’s citizenship, what would this say to all rugby players in our country? We cannot as a government department responsible for sport and recreation in this country, afford to insult our players like this.
It is clear that the managers at Springbok Rugby did not do their jobs properly. Now they want to Minister to fix their problem for them. Surely, the Rule of Law requires the Minister to treat everyone the same and not to do special favours for “The Beast” just because he would have grinded the French front-row into the ground on Friday night if he had been allowed to play.
The South African Citizenship Act 88 of 1998 states that the Minister may grant South African citizenship to an applicant who can show, amongst other things, that he or she has been a permanent resident for at least one year, has lived in South Africa for at least four more years, is of good character, he or she intends to continue staying in the country, can speak at least one of the official languages and “he or she has an adequate knowledge of the responsibilities and privileges of South African citizenship”.
The Minister has a discretion to grant citizenship, but can only grant citizenship if the prescribed requirements are met.
The problem is that even if the Minister had wanted to help SA Rugby, all the requirements that would have allowed him to grant citizenship are not in place. Although “The Beast” has a work permit, he is not a permanent resident of South Africa. He could legally be granted permanent residency by the Director General of Home Affairs in terms of 27(b) of the Immigration Act 13 of 2002 because he “possesses extraordinary skills or qualifications”. The DG has a discretion in this regard and if he wants to, he would be well within the limits of the law to issue Mtawarira with a permanent residency permit. The Minister would then be legally entitled to grant him citizenship one year later without breaking any laws or disrespecting the Rule of Law.
By the way, the Act actually does not refer to “scarce skills” as the Ministry of Sport seems to think. What is required is “extraordinary skills”. Surely being able to scrum Rugby opponents of the highest calibre to a pulp must count as “extraordinary skills”. So one wonders – based on the statement above – whether the Ministry of Sport is perhaps less concerned about the Rule of Law and more about teaching those pesky Springboks a lesson. Isn’t this a bit petty?